Senate Memorandum of understanding

MEMORANDUM OF UNDERSTANDING ON JUDICIAL NOMINATIONS

We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority Leader Frist and Democratic Leader Reid. This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress.

This memorandum is in two parts. Part I relates to the currently pending judicial nominees; Part II relates to subsequent individual nominations to be made by the President and to be acted upon by the Senate’s Judiciary Committee.

We have agreed to the following:

Part I: Commitments on Pending Judicial Nominations

A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit).

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).

Part II: Commitments for Future Nominations

A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

B. Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

We believe that, under Article II, Section 2, of the United States Constitution, the word “Advice” speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.

We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.

Signatories

Republicans	Democrats
Lincoln Chafee (Rhode Island)	Robert Byrd (West Virginia)
Susan Collins (Maine)	Daniel Inouye (Hawaii)
Mike DeWine (Ohio)	Mary Landrieu (Louisiana)
Lindsey Graham (South Carolina)	Joseph Lieberman (Connecticut)
John McCain (Arizona)	Ben Nelson (Nebraska)
John Warner (Virginia)	Mark Pryor (Arkansas)
Olympia Snowe (Maine)	Ken Salazar (Colorado)

I don't like this deal. I don't like it at all. They've taken William Myers and Henry Saad and thrown them under the bus. There are reports that it's actually worse, that they've also conceded, just not in writing, to also give up on Brett Kavanaugh and William Haynes. And, of course, Estrada and Kuhn and Pickering have already withdrawn rather than put up with the ridiculous smearing that's going on by the liberal interest groups and their lapdogs in the mainstream press and US Senate. So of the 10 judges that the Democrats started filibustering, 3 will get up-or-down votes in the US Senate. That's not good enough. That's nowhere near good enough, and Lindsey Graham and John Warner and Susan Collins should be ashamed of themselves. (So should the others, but I don't see that any of them are redeemable, and thus worth worrying about.)

But all of that said, it isn't quite the complete and total sell-out that some are making it out to be. In my opinion, anyway. It is interesting to note that the partisans on the left are just as upset as the partisans on the right. The true believers are appalled that Owen, Pryor and Brown are going to be confirmed.

My take on the MOU (memorandum of understanding) is this: the Democrats win in the short term. They kill the nominations of Myers and Saad, possibly Kavanaugh and Haynes, and keep the right to filibuster. The only short-term downside to them is the confirmation of Owen, Brown and Pryor, and those were going to happen one way or the other. That's why it's a loss for the Republicans - if they'd gone ahead and changed the rules, they'd go ahead and confirm those three, plus Kavanaugh and Haynes, and the Democrats wouldn't be able to stop it.

In the long-term, nothing's changed - the can's just been kicked down the road aways. If Bush nominates someone to fill a Supreme Court vacancy, and that person gets filibustered in the absence of anything that clearly represents "an extraordinary circumstance", the Republicans are not bound to refrain from the rule change. That is my interpretation of what it says. "In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th congress." What are the "continuing commitments" made? "Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist." So if a Bush nominee is filibustered, and Lindsey Graham and John Warner and Mike Dewine are not convinced that "such circumstances exist", they're under no obligation to "oppose the rules changes".

As The New Republic put it, "Republicans will allow Democrats to keep the filibuster as long as Democrats never use it. This way, both sides win (except for the Democrats)." I think that's overstated. But there's a hint of truth about it. The reaction from the right is that the Republicans gave up the ability to change the rules, the reaction from the left is that the Democrats gave up the right to filibuster. I don't think either reaction is correct. The Democrats gave up the right to filibuster 3 specific nominees. The Republicans gave up the right to change the rules today. But nothing in that memorandum fundamentally changed the basics of the situation. The Democrats are still going to try to defeat conservative nominees, and the Republican majority still has the right to change the rules if the current rules are abused. But they won't do it without really obvious and flagrant abuse.