Democrats generally cheered, and Republicans groused, when a bipartisan group of senators crafted a compromise on judicial nominations last month. But with the Senate now confirming several conservative nominees whom Democrats had blocked for years, some liberals are questioning the wisdom of the deal and fretting about what comes next.
"Our problem with the compromise is the price that was paid," Del. Eleanor Holmes Norton (D-D.C.) said yesterday. She and other Congressional Black Caucus members plan to march into the Senate today to protest the impending confirmation of Janice Rogers Brown.
President Bush nominated Brown, an African American on the California Supreme Court, to the U.S. Court of Appeals for the D.C. Circuit, second in prestige and importance only to the Supreme Court. She has expressed her vividly conservative philosophies in speeches and written opinions that dismay liberals. Brown's record "shows a deep hostility to civil rights, to workers' rights, to consumer protection and to a wide variety of governmental actions in many other areas," Sen. Edward M. Kennedy (D-Mass.) said in the first of two floor speeches opposing her nomination yesterday.
The Senate voted 65 to 32 yesterday to end a nearly two-year Democratic filibuster of Brown. The vote stemmed from last month's deal in which seven Democrats agreed to drop filibusters of Brown and four other long-contested nominees, and to refrain from future judicial filibusters except in "extraordinary circumstances." In return, seven GOP senators agreed to scuttle Majority Leader Bill Frist's proposed rule change banning judicial filibusters.
Before the deal was reached, Democrats had used the filibuster -- which can be stopped only with 60 votes -- to block 10 of Bush's appellate court nominees. Republicans hold 55 of the Senate's 100 seats. Bush renominated seven of the 10 this year, and senators were headed toward a bitterly partisan showdown until the 14 negotiators announced their pact.
The deal cleared the way for five of the seven renominated jurists to be confirmed, probably this week. Controversy has largely faded for two: Richard A. Griffin and David W. McKeague, Michigan judges tapped for the U.S. Court of Appeals for the 6th Circuit. But the other three -- Brown, Priscilla R. Owen of Texas and William H. Pryor Jr. of Alabama -- still draw sharp denunciations from liberal groups who say they are outside the political mainstream.
After a four-year impasse, the Senate last month confirmed Owen for the U.S. Court of Appeals for the 5th Circuit. A confirmation vote on Brown is scheduled for today, and Senate leaders said they expect approval of Pryor for the 11th Circuit court by late tomorrow.
Several conservative commentators described the "Gang of 14" deal as a setback for Frist (R-Tenn.). Frist reinforced that notion with speeches describing his disappointment that two of the renominated judges -- William G. Myers III of Idaho and Henry W. Saad of Michigan -- appeared unlikely to be confirmed. But others say several sharply conservative judges are now being seated, and it is far from clear that the "extraordinary circumstances" clause will enable Democrats to block future conservative nominees to the Supreme Court or elsewhere.
"It looks like in some ways Frist is seizing the initiative," said Carl W. Tobias, a law professor at the University of Richmond. Moreover, he said, liberals may be deluded in thinking the bipartisan deal will thwart another contentious nominee -- Brett M. Kavanaugh, the White House staff secretary -- who is not named in the two-page agreement. Two years ago, Bush nominated Kavanaugh, who helped independent counsel Kenneth W. Starr pursue the Monica S. Lewinsky case, to the D.C. Circuit appeals court.
"I think it's wishful thinking by the Democrats that he won't move forward," Tobias said. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said of Kavanaugh in an interview yesterday, "I intend to push him."
Yesterday, the Senate devoted itself entirely to Brown. Frist called her "a superb judge" who applies the law "without bias, without favor, with an even hand." Sen. Lindsey O. Graham (R-S.C.), one of the 14 negotiators, called Brown "an extremely talented and qualified judge" who will "advance the cause of conservative judicial philosophy."
But Democrats recited a litany of Brown's controversial statements, including several from a 2000 speech titled "Fifty Ways to Lose Your Freedom." She said senior citizens "blithely cannibalize their grandchildren because they have a right to get as much 'free' stuff as the political system will permit them to extract." Elsewhere, Brown has said: "Where government moves in, community retreats, civil society disintegrates. . . . When government advances . . . freedom is imperiled, civilization itself [is] jeopardized."
Sen. Joseph R. Biden Jr. (D-Del.) told reporters that Brown is "one of the most extreme nominees that has ever come before the United States Senate in the 32 years I've been a senator."
Others warned that last month's compromise could be threatened soon. The pact permits the seven Democratic signers to filibuster Myers -- whom environmentalists strongly oppose -- without triggering support for a filibuster ban by the seven GOP signers. But Sen. Orrin G. Hatch (R-Utah) said that if Myers is filibustered, "the 14 are going to be in a real quandary, because they know how good he is."
Nan Aron, head of the liberal Alliance for Justice, said the accord reached by the 14 senators "is very mixed. Like all compromises, it had some really good and some really bad. . . . It was a bright day for the Senate and a dark day for the judiciary."