Demagogue

Apparently, the Dems floated the idea of confirming a couple of the filibustered judges in exchange for some kind of assurances regarding future appointments. They may have done so as a political ploy, knowing that Frist would shoot it down. Which he did, accepting the fundies' line that no compromise will be entertained: the only acceptable outcome is an end to the filibuster on every appointee, with no concession in return.

When it comes to filibusters in general, there are a few things that long-time followers of the judge wars will point to as undermining Frist's supposed belief that the Constitution requires an up-or-down vote on every nominee--his own vote against cloture on Richard Paez's nomination being Exhibit A. But on this latest development in particular--that the President is entitled to a vote on every nominee without any concessions to the other side--there are also a few things to remember from the Clinton years.

The GOP not only held up scores of nominees who never got a vote, including several who withdrew after years of waiting, but it also repeatedly cut deals under which Clinton nominees received floor votes in return for a gift from the White House to some GOP senator. One deal that's particularly worth remembering now is the one that got William Fletcher onto the Ninth Circuit.

Republicans didn't trust Fletcher, principally because his mother was already a judge and had a very liberal record. I was at his confirmation hearing, where he was grilled about a law review article he'd written on Article III standing (don't worry if you don't know what that means; I assure you it's riveting stuff). After the hearing, I occasionally checked to see if he'd been confirmed yet. I waited (and, more important, so did he) for four years. Then he was allowed onto the court as part of a deal that gave GOP Senator Slade Gorton of Washington both input into the selection of and a veto over all federal judicial appointments from Washington, including those to the Ninth Circuit. As part of the quid pro quo for allowing a floor vote on Fletcher, Clinton even had to nominate an outspoken conservative to the appellate court at Gorton's behest, though she eventually withdrew for health reasons.

Read that again: in order to allow a vote on a Clinton nominee, the GOP demanded, not some vague promise that Clinton would consult with them in the future, but the matching nomination of a right-wing judge of their choice to the Court of Appeals.

Something to remember when the Right Rev. Bill Frist, M.D., speaks of the sanctity of the President's right to name whomever he wants and to have a prompt, no-strings-attached floor vote on every nomination.