The NYT reports that last-minute talks to avert a “nuclear” showdown in the Senate over judicial nominees broke down. Commented Senate Minority Leader Harry Reid, “I have tried to compromise, and they want all or nothing, and I can’t do that.” This echoes Reid’s earlier sentiment that Senate Majority Leader Bill Frist never offered much of a deal, but is that really so?
The deal Frist offered was a guaranteed minimum of 100 hours of debate before a vote on any contested appellate or Supreme Court nominee. At first blush, this seems like nothing at all. Who cares how long you talk if the end result — confirmation — is preordained. Yet I think this assessment overlooks an important point: 100 hours of floor debate is a substantial amount of time on the Senate calendar. If Frist held the Senate in session 24-7, it would still take over 4 days of debate to vote on a single nominee; 10 contested nominees would take over 40 days of the Senate doing absolutely nothing but debating nominees — and this would almost certainly never happen. As Byron York pointed out, Frist’s deal would almost certainly guarantee that some of Bush’s nominees would not get confirmed (though the Democrats would not know which ones).
If this is the case, why did Reid reject the deal? I think the answer is the Supreme Court. While Frist’s deal might prevent Republicans from confirming all of Bush’s appellate nominees, it would enable the GOP to ensure the confirmation of any given single nominee. So, if President Bush were to make a Supreme Court appointment, his or her confirmation would be a sure thing so long as the nomination maintained GOP support.
While both sides frame the debate as one about current nominees, the offer and rejection of the “100-hour” deal confirms what many already knew: The judicial confirmation wars is all about Supreme Court nominations that are yet to come.
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