The Art of Negotiation...Or Not
By Tara Ross

Okay, so let me see if I’ve got this straight. A minority of liberal Democrats have engaged in obstructionism of Bush’s judicial nominees for four years. For two of those years, they have led and sustained unprecedented filibusters of ten nominees.

 

Majority Leader Bill Frist has worked to combat such hutzpah, but his efforts have now been undermined by the negotiating tactics of seven so-called moderate Republicans, led by renegade Senator John McCain. But let’s give credit where credit is due. These talented and savvy dissident Republican negotiators did, after all, manage to ensure that three judicial nominees will receive a confirmation vote.

 

Yes, you heard that right. Only three of ten filibustered Bush judicial nominees are guaranteed a vote by the full Senate as a result of McCain’s deal. Three other judges (Miguel Estrada, Carolyn Kuhl, and Charles Pickering) remain defeated by the unprecedented use of filibusters. Four additional previously filibustered judges (William Myers, Richard Griffin, David McKeague, and Henry Saad) remain dangling in the wind with no guarantee that they will ever receive the simple courtesy of an up-or-down vote.

 

Liberal minority Democrats: 7. Gutless so-called moderate Republicans: 3. What a wonderful accomplishment for Republicans everywhere.

 

But wait. Correct me if I’m wrong. Don’t Republicans constitute a majority in the Senate? Shouldn’t they have had an upper hand in these negotiations? Democrats are not only in the minority, but they are in a shrinking minority. One would have thought that losing Senate seats every two years would case their negotiating power to wane.

 

Clearly these defecting Republicans have a thing or two to learn about the art of negotiating. Any negotiator worth his salt would have, at the very least, ensured that a majority of these ten filibustered nominees receives a confirmation vote as a result of this alleged deal.

 

Let’s put this situation into context. Prior to Bush’s presidency, filibusters had never been used to kill a judicial nominee. During his presidency, ten judicial nominations have been filibustered (so far).

 

That’s zero filibusters before 2000. Ten filibusters after. How can these numbers be justified?

 

Democrats will dispute these figures, arguing that filibusters have always been available for judicial nominations. If a Democrat makes this argument to you, your response should be simple. Ask this Democrat to name one—just one—nominee who would be sitting on the bench today if it weren’t for a filibuster.  He won’t be able to do it, but he will try to make his point by citing the case of Abe Fortas.

 

Lyndon B. Johnson nominated Abe Fortas to be Chief Justice of the Supreme Court in 1968. One attempt to go to an up-or-down vote failed, and Johnson withdrew the nomination. Let me emphasize: Every indication in the Congressional Record is that the Senators genuinely wanted more debate on Fortas and intended to go to an up-or-down vote in short order. Moreover, opposition to Fortas’ nomination was bipartisan, in large part due to serious ethical problems alleged against him. The historical record indicates that Johnson withdrew the Fortas nomination not because of a filibuster, but because he could see that Fortas did not have majority support in the Senate. 

 

In sharp contrast, Bush’s nominees have obtained majority support. Each of these nominees would sit on the bench today where it not for the obstructionism of a minority of liberal Democratic senators.

 

But far be it from spineless, so-called moderate Republicans to understand this history of filibusters. Apparently, they actually thought that Democrats had the upper hand during negotiations in recent days.  How else can one explain the lackluster result that they achieved?

 

Sadly, what these seven Republicans do not yet seem to have grasped is that judges should not be rejected or confirmed based upon personal conservative or liberal leanings. They should be nominated and confirmed when they have demonstrated that they will uphold the law. Plain and simple. Bush’s nominees have demonstrated their fidelity to the rule of law. They all deserve up-and-down votes.

 

Conservatives should not give up on having these men and women confirmed, despite the clumsy, unskillful, and misguided negotiations of seven rebellious Republican Senators.

 

Frist and the majority of Republicans who would have supported an end to judicial filibusters should continue to push for confirmation votes on Bush’s remaining judicial nominees. Additionally, seven Democratic signatories to this week’s deal agreed to support judicial filibusters only in “extraordinary circumstances.” They should be pressured to abide by their word. Last, the Bush administration should keep nominating qualified judicial candidates who can be trusted not to act as judicial activists. The President should not let himself be intimidated by the bullying tactics of a handful of liberal Democratic Senators.

 

In the meantime, at least a few of the dissident Republican Senators hail from red states. If I were them, I’d be looking over my shoulder. It wouldn’t be surprising to see a strong primary challenger funded by the more conservative arm of the Republican Party in a future senatorial primary.

 

 

Tara Ross is a regular columnist for TAEmag.com and author of Enlightened Democracy: The Case for the Electoral College.