WASHINGTON (ABP) — To the delight of some conservative groups and the chagrin of some civil-rights groups, the Senate has confirmed three of President Bush's most controversial nominees to the federal courts.
A closely divided Senate capped a weeklong debate over judicial nominations June 9 by confirming former Alabama Attorney General William Pryor for a lifetime appointment to the 11th U.S. Circuit Court of Appeals. Pryor was the last in a series of three Bush judicial nominees, who were previously blocked by Democrats but then written into an agreement reached by a bipartisan group of 14 senators in order to avoid an unprecedented confrontation over the Senate tactic known as the “filibuster.”
The rancor over the nominations was exemplified by Pryor's 53-45 confirmation vote, which didn't break down neatly along party lines. Three Republicans joined most Democrats in opposing the nominee, while two Democrats voted in his favor. Two senators — a Republican and an independent — did not vote.
“He is an extraordinary individual, a wonderful human being, a brilliant lawyer, a man of the highest integrity, who has won the respect and support and confidence of the people of Alabama to an extraordinary degree,” said Sen. Jeff Sessions (R-Ala.), speaking in Pryor's favor on the Senate floor June 9. But Sessions also noted that Democrats had blocked a vote on his nomination for two years. “So it has been a burden for me to feel the frustration that I know he and his family must endure as a result of the uncertainty of his nomination process.”
But Sen. Charles Schumer (D-N.Y.), who led the Senate opposition to Pryor, painted a picture of him as a conservative judicial activist. “Mr. Pryor has been one of the staunchest advocates of efforts to roll back the clock [on civil-rights protections] — not just to the 1930s but to the 1890s,” he said. “He is an ardent supporter of an activist Supreme Court agenda cutting back Congress's power to protect women, workers, consumers, the environment, and civil rights.”
Groups supportive of church-state separation and minority rights decried Pryor's confirmation. “The federal courts are becoming increasingly tilted toward the far right, and today's action in the Senate will add to that imbalance,” said Barry Lynn, executive director of Americans United for Separation of Church and State, in comments released immediately following the vote. “Pryor, like a disturbing number of recent judicial appointments, has revealed a desire to seriously undercut the protections of many of our nation's most cherished fundamental freedoms.”
But many conservative religious groups cheered the vote, as did President Bush, who last year gave Pryor a temporary “recess appointment” to the 11th Circuit. “Judge Pryor's recent service on the 11th Circuit has built on an impressive career of public service in which he has applied the law fairly and impartially to all people,” Bush said, in a statement released by the White House shortly after the Senate vote. “I commend the Senate for fulfilling its constitutional responsibility to vote on Judge Pryor and for confirming him so that he will continue his service on this court.”
Pryor played a key role, as Alabama's attorney general, in the 2003 controversy over former Alabama Chief Justice Roy Moore. He initially defended as constitutional Moore's placement of a massive granite monument to the Protestant version of the Ten Commandments in the rotunda of the state's judicial headquarters building.
However, a series of federal courts — including the 11th Circuit — declared the monument a violation of the First Amendment's ban on government support for religion and ordered it removed. Moore defied the court's order, which Pryor then agreed to enforce.
The other formerly filibustered Bush nominees who gained approval as a result of the compromise were former Priscilla Owen of Texas, who was approved for a seat on the 5th Circuit May 24 on a 56-43 vote; and Janice Rogers Brown of California, who received an identical approval vote for a seat on the D.C. Circuit June 8.
They were among 10 Bush nominees that a minority in the Senate had blocked. The Senate has approved more than 200 other Bush nominees, most without objection. But Democrats opposed what they believed were examples of extremism, or judicial “activism,” in the records or writings of most of the filibustered nominees.
Senate rules require 60 votes to close debate on any matter and move to a substantive vote. Because of that rule, minority parties with 41 seats or more in the chamber can block such up-or-down votes by refusing to end debate on a nominee or piece of legislation. Republicans hold a 55-44 majority in the chamber, with one independent who tends to vote with Democrats.
But Republicans — spurred on by the White House and some conservative religious groups — had threatened to do an end-run around the Senate's normal procedure for changing its rules and override the filibuster for judicial nominations by a simple majority vote. Such a move has been dubbed the “nuclear option” because it would have dramatically changed nearly 200 years of Senate tradition and risked major retaliation from Democrats.
Although the Senate's partisan leadership — Majority Leader Bill Frist (R-Tenn.) and Minority Leader Harry Reid (D-Nev.) — had reached a stalemate over the issue, the bipartisan group of 14 mostly moderate senators worked for weeks to avoid the showdown, saying it would risk destroying the chamber's tradition of collegiality.
On the eve of the vote on Owen, they emerged with a “Memorandum of Understanding on Judicial Nominations” that effectively rendered the leaders' entrenched positions irrelevant.
In the memorandum, Democrats pledged to vote to allow an up-or-down vote on the three nominees. The memorandum also required no commitments on two other nominees who have been filibustered, and did not mention two additional nominees who had been blocked for non-ideological reasons. Those two were approved for seats on the 6th Circuit by unanimous votes, also on June 9.
And it committed the seven Republicans to vote against the nuclear option for the rest of the 109th Congress. However, it stipulated that judicial picks “should only be filibustered under extraordinary circumstances” and that each senator should “use his or her own discretion in determining whether such circumstances exist.”