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.
Specter is vague about the "nuclear option" but has been seeking to unblock some blocked nominee. Myers would seem an unlikely choice. As a lobbyist and former Interior Department solicitor, he provides a cornucopia of positions antagonizing the left. Myers is the first judicial nominee ever opposed by the National Wildlife Federation and the National Congress of American Indians.
Specter chose Myers because he thought him the best chance to get 60 votes. Although never before accused of naivete, old pol Specter was taken in by the bait-and-switch tactics used by liberal Democrat Ken Salazar last year to win a Senate seat from the pale "Red" state of Colorado. As state attorney general, Salazar strongly endorsed Idaho lawyer Myers for the heavily liberal 9th Circuit Court of Appeals. As a senator, he joined Democratic colleagues asking Bush to withdraw Myers's name.
Indeed, Democrats are so addicted to the taste of judicial blood that they apparently will not confirm Myers even to trap Republicans into the 60-vote precedent. Sen. Patrick Leahy, ranking Democrat on the Judiciary Committee, last week declared Myers unacceptable.
Specter can decide which nominee comes first out of the Judiciary Committee, though he has pledged to move all of them to the Senate floor. But he will not decide which one is taken up first by the Senate. That is the prerogative of the leadership, which is inclined to go with Justice Brown or possibly Texas Supreme Court Justice Priscilla Owen. But if the leaders are sure Specter cannot get 60 votes, Myers might be sent to the floor to show that not even 58 or 59 senators can confirm a judge.