Robert Novak

WASHINGTON -- Conservative misgivings about Sen. Arlen Specter's rise this year to become chairman of the Judiciary Committee were validated last week. Without consulting the Republican leadership, Specter launched a procedure that undercuts party strategy for confirming President Bush's judicial nominees. Ironically, however, Democrats are so intransigent that not even Specter's temporizing has moderated them so far.

 Specter, on his own, picked William Myers, a former cattle industry lobbyist, as the nominee blocked by Democrats in the last Congress who will go first in the new Congress. He did so because he figured that Myers, among 16 blocked Bush appellate nominees, had the best chance to get 60 votes needed to break a filibuster. But, as Specter is well aware, the Republican party is not interested in confirming judges with 60 votes. It wants to re-establish the constitutional principle that a simple majority of 51 votes is sufficient for confirmation.

 This creates a peculiar situation, with control of the federal judiciary, especially the Supreme Court, at stake. The last outcome the Republican leadership wants would be a filibuster against Myers broken by 60 senators voting for cloture. That precedent would restrict what kind of Bush Supreme Court nominee could get through the Senate. Republican leaders want to use parliamentary procedures to confirm judges with a simple majority -- the so-called "nuclear option."

 Democrats are so antagonized by this option that Sen. Robert C. Byrd, the 87-year-old dean of the Senate, compared it on the Senate floor last week to Hitler's "enabling act" that seized power in Germany. The likelihood that Democrats will respond by bringing Senate business to a standstill leads to the possible strategy of ensuring that popular legislation -- perhaps the highway bill -- will be on the floor at that point.

 In order to get the Judiciary chairmanship, Specter promised to support all of Bush's judicial nominees. But he did not promise the order in which he would send nominees to the floor. He must have known the first choice of Majority Leader Bill Frist and the other Republican leaders was Justice Janice Rogers Brown, a conservative member of the California Supreme Court. A Democratic filibuster stopped her in the last Congress.

 The spectacle of Democrats blocking an African-American woman from becoming an appellate judge is welcomed by Republicans. With no chance to get 60 senators supporting her, Frist will then make a point of order to be upheld by Vice President Dick Cheney, presiding over the Senate. If a simple majority upholds him, Brown is confirmed -- and the war is won.

Robert Novak

Robert Novak (1931-2009) was a syndicated columnist and editor of the Evans-Novak Political Report.

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