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May 27, 2005


ANNOUNCER: Substituting for Paul Gigot, here is Dan Henninger.

DAN HENNINGER: Welcome to THE JOURNAL EDITORIAL REPORT. Here's what happened in one day this week in Washington: A bipartisan group of 14 senators agreed on ambiguous language to avoid an angry showdown over using Senate filibusters against the president's judicial nominees. Highlighting the fact that there could soon be an even angrier fight over Supreme Court nominees, Chief Justice William Reinquist was seen in his wheelchair on a trip to the doctor. And for the first time in five years, the Supreme Court agreed to consider an abortion case next term, a decision likely to intensify any debate over nominations to the court.

It was a wicked brew of developments, probably meaning that we're in for a bloody battle between the president and the Senate this summer.

With me to discuss all this are Melanie Kirkpatrick, associate editor of THE WALL STREET JOURNAL editorial page, John Fund of, and James Taranto, also of

Here's the critical language in the compromise agreement: "Nominees should only be filibustered under extraordinary circumstances. "

John, what has this done for the tenor and disposition of the Senate in terms of the president's future nominees? I mean it didn't kill party politics did it?

JOHN FUND: No, it just deferred them. If there is a Supreme Court vacancy it is going to be a bloody hot summer. I think the American people looking at this agreement must be a little confused because on Monday 14 senators came out and they were all smiles. You know, we've averted this major train wreck. On Thursday a filibuster was mounted against John Bolton as U.N. ambassador. Now granted the compromise didn't deal with anything other than judicial nominations, but there was this jarring juxtaposition. On Monday filibusters only under extraordinary circumstances and by Thursday we already have an extraordinary circumstance on another nominee. It's bizarre. It just means that we are seeing the Senate this term going to turn into the Senate the filibusters.

MELANIE KIRKPATRICK: One ways it's changed a potential Supreme Court fight though is I think on what basis will the fight take place? It's going to be harder for the Democrats to argue that a candidate has too conservative a judicial philosophy after they just allowed three conservative nominees to go through. So that means they're going to have to look for other issues.

JOHN FUND: No muss, no fuss, they'll argue all of the above.

MR. HENNINGER: Well one big issue that came up this week the Supreme Court said that it would take an abortion case from New Hampshire. It was basically a parental notification case which suggests that the Democrats will say this subject is on the table and we're going to dig out of the nominee what his or her views are on this.

James, do you think we're just going back to the filibuster battlefield with the next Supreme Court nominee or maybe not?

JAMES TARANTO: I'm not so sure about that. I don't think abortion is actually a winning issue for the Democrats. You remember they went after Clarence Thomas on this and were unable to sink him on it. They went after Judge Bork on abortion. They were able to sink him, but it wasn't really abortion that did it -- it was race. He was painted as an enemy of civil rights. Teddy Kennedy famously said "in Robert Bork's America women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizen's doors." The blacks at segregated lunch counters was really the point there because the southern Democrats voted against Bork on the basis of his being supposedly an enemy of civil rights. Now there are very few southern Democrats left so there's not enough for them to make the racial arguments and I don't think somebody like Mary Landrieu is going to want to oppose somebody because of his views on abortion.

JOHN FUND: All of the above arguments, NARAL Pro-America, which is a liberal interest group, has gone and asked for the financial disclosure forms of 30 of Bush and other Republican presidents' Appeals Court nominees. These are the likely talent pool by which you would select a Supreme Court nominee. They are going to go through with a fine tooth comb, if it's not abortion, if it's not civil rights, if it's not race it will be some financial disclosure form filed 10 years ago. Remember the Bolton filibuster is all about some obscure document that supposedly the Senate Intelligence Committee has seen and doesn't have a problem with, but Joe Biden and Chris Dodd do.

MR. HENNINGER: Well, what's different about this is when you get a Supreme Court nominee they become a household name. Rather these appellate nominees were by and large anonymous. And the senators go into prime time. I wonder just how many of the Democrats from red states that got elected from red states are going to want to step forward the way they did with party discipline on these appellate nominations.

JAMES TARANTO: And are going to want to step forward and argue that the nominees shouldn't get a vote. This is what distinguishes the filibuster battle from say Judge Bork. He was defeated, not fair, but square. They voted him down.

MR. HENNINGER: Melanie, one of the key phrases in the agreement is that they should be filibustered only under extraordinary circumstances and a disagreement has already broken out over the key definition of extraordinary circumstances. Some of the Republicans think it takes judicial philosophy off the table and some of the Democrats say no, you can't do that.

MELANIE KIRKPATRICK: We'll know it when we see it. I think the Democrats and the Republicans are already arguing as you say over what means extraordinary circumstances. And I must say that there are several Republicans who signed the compromise who say that they can't imagine what an extraordinary circumstance would be and that they are willing to exercise the nuclear option.

MR. HENNINGER: I think Senator DeWine said that.

MELANIE KIRKPATRICK: Senator DeWine, Senator Graham and Senator Warner all said that the nuclear option is still on the table.

JAMES TARANTO: But there's another way of looking at this extraordinary circumstance question. The agreement says that in determining whether there are extraordinary circumstances "each signatory must use his or her own discretion and judgment in determining whether such circumstances exist." That's not what they were doing before. They were voting the party line. So in a way you can look at this as a break in the Democratic unity.

MR. HENNINGER: John, do you think there's any possibility that the Democratic base that Harry Reed has to answer to is going to allow anything other than an extremely aggressive opposition to any nominee to the Supreme Court.

JOHN FUND: No, the Democratic senators have a problem. Even if they might want to at least accede to the nominee, the liberal interest groups and the liberal donor base that fuels the Democratic party right now because they don' have any leverage or power, are insisting on confrontation at all costs. Therefore they have a problem; if they appear at all reasonable their donor base could melt away because they'll be labeled as sell outs. This is the problem a minority party often has. The Republicans had it about 15 or 20 years ago in some cases.

MELANIE KIRKPATRICK: I might add though that Republicans have it to a certain extent now too because there are conservative interest groups that are so angry over this compromise that they are threatening to withhold funding over a Supreme Court nominee.

MR. HENNINGER: Well, it looks like a long hot summer. Next subject.