Byron York: In judicial wars, Repubs admit they have no ammo

Harry Reid is tired of waiting. For months now, the Senate majority leader has wanted to confirm one of President Obama's judicial nominees, David Hamilton, who is up for a spot on the 7th Circuit Court of Appeals. But Reid says minority Republicans, who object to Hamilton's record as a judge on the lower federal district court, have used parliamentary tactics to slow the process down.

“He's been waiting since April,” Reid told reporters. “Waiting since April.”

Given everything else going on in the Senate, the Hamilton nomination has not been a top priority for Reid. But now, under pressure from liberal judicial activists, Reid will force the Senate to vote on a measure that will lead to an up-or-down confirmation vote, which Hamilton will assuredly win.

Republicans have mocked Reid's impatience in the Hamilton matter. Has Reid forgotten Priscilla Owen, Janice Rogers Brown, Miguel Estrada, Terrence Boyle, and a number of other Bush administration appeals-court nominees who came before the Senate just a few years ago? Back then, the minority party — Harry Reid's Democrats — slowed them down, too. They waited years, not months.

Owen waited four years for confirmation. Brown waited two. Estrada waited three years before withdrawing his nomination. And Boyle waited nearly eight years before his hopes for the bench died with the end of the Bush administration — blocked by Democrats until the very last.

When they were in the minority, the Democrats used the filibuster to stop 10 appeals-court nominees — something no minority party had ever done before.

They did it by playing the hardest sort of hardball. When, in 2005, majority Republicans wanted to move forward with the Owen nomination, they tried to accommodate the Democrats' demand for extended debate on the issue. “I ask if any number of hours would be sufficient for the senator from Nevada,” said GOP Sen. Robert Bennett, of Utah, in a floor exchange with Reid.

“There is not a number in the universe that would be sufficient,” Reid answered.

Owen, and the rest of the Bush nominees, remained blocked until later in 2005, when the so-called “Gang of 14” came up with a deal to put an end to the filibusters. Many — not all — of the Bush candidates were confirmed, and senators agreed that in the future, “Nominees should be filibustered only under extraordinary circumstances.” The agreement left it to each senator to define “extraordinary circumstances.”

Now, there is a new Democratic president, and minority Republicans object to some of his judicial nominees. Before the Democratic filibusters and the “Gang of 14” agreement, there was no standard for filibustering judicial nominees. Now, there is.

“The new standard is 'extraordinary circumstances,'” Sen. Jeff Sessions, of Alabama, ranking Republican on the Senate Judiciary Committee, told reporters Monday. “Individual senators will make their choices.”

The existence of the “extraordinary circumstances” standard has allowed Republicans, who railed against judicial filibusters when Democrats were doing them, to embrace the filibuster now that the GOP is in the minority. That's why we're hearing the phrase a lot from Sessions. “Normally, we don't filibuster,” he told a Federalist Society gathering in Washington last week. “But if extraordinary circumstances exist, I suspect that's where we're going to come out.”

As far as the Hamilton nomination is specifically concerned, Sessions said recently that it is “one of those extraordinary circumstances where the president should be informed that his nominee is not qualified.”

The problem is, now that Republicans can justify their turnaround on the judicial filibuster, they don't have the votes to put it into action. In 2003, when Democrats began filibustering Bush nominees, they had 49 votes. By 2005, the still had 45 votes. In each case, they could lose a few of their centrists, as they always did, and still uphold a filibuster. On more than 20 occasions, majority Republicans tried and failed to break Democratic filibusters.

But now Republicans have just 40 votes, short of the 41 it takes to uphold a filibuster. By themselves, they can't stop anything. Whether there are "extraordinary circumstances” or not, Republicans would have to not only be united among themselves but also have the help of at least one Democrat if they wanted to stop a nomination. It's a nearly impossible task. “The bottom line is that the numbers for us are just insurmountable,” says a GOP Senate aide.

So that's why it borders on the absurd for Reid and his fellow Democrats to blame Republicans for stopping anything. At least until next year's elections, Democrats are in the luxurious position — the extraordinary circumstance — of being able to win the judicial nominations wars all by themselves.

Byron York, The Examiner's chief political correspondent, can be contacted at byork@washingtonexaminer.com. His column appears on Tuesday and Friday, and his stories and blog posts appears on www.ExaminerPolitics.com ExaminerPolitics.com.

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