Deal reached on judicial nominees

WASHINGTON -- Just in time for the high political season, the White House and Senate Democrats struck a deal on Tuesday that ends for now the months-long impasse over President Bush's judicial nominees.

Under the agreement, Bush has pledged that he will not bypass the Senate with any more recess appointments to the bench for the remainder of his term, something he has done twice. In exchange, the Democrats will allow 25 of the Bush judicial nominees to be confirmed in coming weeks while continuing to block seven candidates they have deemed extreme ideologues.

Sen. Bill Frist, R-Tenn., the Republican leader, told reporters, "It's fair, it's balanced. Both sides have worked on it for days, and both sides are satisfied."

Maybe so, but one side seemed more satisfied than the other. Sen. Charles E. Schumer, D-N.Y., who has been deeply engaged in the judicial wars, said, "The White House waved the white flag here." Schumer said that Bush had conceded that he could not continue to fill the bench with recess appointees in the face of concerted Democratic opposition.

While Schumer was gleeful, some of his Republican counterparts were decidedly more equivocal. "It's disappointing, but this is the best we can do. I recognize that," said Sen. Jon Kyl, R-Ariz., who is a member of the Judiciary Committee. "It's very unfair to these people who will not get confirmed."

Another tepid reaction came from Sen. John Cornyn, R-Texas, who also sits on the Judiciary Committee.

"Though it is encouraging to finally see some action on the president's highly qualified judicial nominees, many others are still blocked" he said. "My concern is now that the Democrat obstructionists have successfully negotiated in exchange for their hostages, what will stop them from blocking all future nominees?"

The agreement ends for the time being a political dispute that was unusual in that it produced real bruises and hard feelings in the Senate, where most arguments are usually washed away and forgotten. Underlying the fight was an argument over how the president and Senate share responsibility for who goes onto the federal bench.

Bush, with a slim majority of Republicans in the Senate named several candidates who were outspoken in their conservative views. The Democrats, surprising many, including themselves, remained largely unified in banding together to stage filibusters to block those candidates they found most unappetizing.

Bush then responded by naming two of those who were blocked to the bench while the Senate was in recess, skirting the opposition. Those recess nominees, William H. Pryor Jr. and Charles W. Pickering Sr., are obliged to leave their posts after a congressional term and do not have life tenure as do other federal judges.

The Democrats counterattacked by putting a freeze on all of the administration's nominees.

That tactic, in fact, seemed to have won the day for the Democrats in the partisan face-off. It meant that many judicial nominees whose confirmation was devoutly hoped for by their Republican senators and patrons might never become judges. And with the election coming, they would not be renominated if the Democrats captured the White House.

As of now, the Democrats have not abandoned or renounced their use of the filibuster, which the Republicans declared an outrageous flouting of the Constitution, but Bush has given up on recess appointments which the Democrats declared a vile repudiation of the Constitution.

The seven nominees include the two who have already been named to the bench as recess appointees and still, technically, remain before the Senate. The other five are: Brett Kavanaugh, a senior White House official; William J. Haynes, the Pentagon's chief civilian lawyer who is deeply embroiled in the current issue of prisoner abuse in Iraq; Priscilla Owen, a justice on the Texas Supreme Court; Carolyn Kuhl, a local judge in California and Janice Rogers Brown, a justice on the California Supreme Court.

All were nominated to federal appeals courts, the level just below the Supreme Court. Appointments to the appeals courts have produced the greatest controversy because appeals court judges have more freedom than trial judges to influence the law.

Of the 25 judges who will be allowed by the Democrats to be confirmed, 20 are for the district or trial courts and five for the appeals courts.

The agreement also benefits Democrats in another fashion, Democratic and Republican political aides said Tuesday, by making it more difficult for Republicans to complain in the upcoming political campaigns that the Democrats have been obstructionists.

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