The Washington Times notices that a number of President Bush's judicial nominees were left out of the agreement that supposedly ended confirmation filibusters, except under "extraordinary circumstances". Other pundits have noted the ambiguity of the memorandum; however, the Times' editorial board points out that some of those specifically ignored have waited as long or longer than the enumerated nominees, and suspects that they, too, have been thrown under the bus by the Seven Dwarves:

In a subsection of the memo --"Part I: Commitment on Pending Judicial Nominations" -- the senators specifically refer to five nominees. For three of these five so-called "pending" nominees (Priscilla Owen, Janice Rogers Brown and William Pryor), the gang committed themselves to permitting an up-or-down confirmation vote on the Senate floor. For the other two (William Myers III and Henry Saad) of the five "pending" nominees, the gang made no such commitment.

Again, what were the criteria? The delimiting criterion could not have been the fact that a "pending" nominee was simply someone who had been nominated by Mr. Bush during the 109th Congress. In fact, there have been 12 circuit-court nominations so far. Nor could the delimiting criterion be the fact that a "pending" nominee was someone whom the Judiciary Committee had already approved. Mr. Saad has not yet been approved by the committee. And Thomas Griffith, whom the committee approved 14-4 on April 14, was not considered to be a "pending" nominee.

Why did the seven Republicans ignore so many nominees who have been put forth this year by Mr. Bush? They are de facto "pending" nominees, are they not? In some cases, it is because "an unwritten aspect of the pact" called for Brett Kavanaugh and William J. Haynes II to be tossed overboard with Mr. Myers and Mr. Saad. Messrs. Kavanaugh and Haynes were nominated during the 108th Congress, would have been filibustered during the 108th by the Democrats if they had reached the floor and were renominated in February.

What about Terrence Boyle, who was first nominated in May 2001, renominated in 2003 and renominated in February? What about Richard Griffin and David McKeague, who were filibustered during the 108th and renominated this year? What about Susan Bieke Neilson? Renominated in 2005, she was approved by committee in October 2004 and would have been filibustered if she reached the floor.

Here is the real criterion: The 14 senators, including the seven Republicans, had to find the smallest number of nominees -- three (Justice Brown, Justice Owen and Judge Pryor) -- that would be guaranteed an up-or-down vote, on the one hand, and that would still exceed the number (two) that specifically would not be given such a vote, on the other hand.

A quick look at Arlen Specter's latest report from the Judiciary Committee confirms this count. The committee now has eleven pending nominations, which include nine nominated in the 108th Congress, most of those in 2003. These do not include anyone reported out of committee, such as Owen, Brown, or Pryor, nor does it include the three judges who did not get renominated by George Bush this session, such as Miguel Estrada, who lost patience with the nightmare. That would total seventeen, but Owen, of course, has been confirmed.

Of the sixteen left, the memorandum only addresses five -- which clearly indicates that there is more to this "compromise" than the participants want us to know. All that this document confirms is that three of these will get an up-or-down vote in the Senate. Three others have already been vanquished, and the other nine don't even rate a mention.

Why? The Democrats know who these nominees are. If they don't plan on filibustering them, why not just offer them up in the agreement to mollify the majority, or to get rid of one or more of the other three that they have vilified for years as "extremists" or "bad people"? The more one looks at who gets mentioned and who gets ignored, the more it looks like Saad and Myers will not be the last nominees to get tossed under the bus.

The Times does the math:

Democrats filibustered 10 appellate-court nominees during the 108th and would have filibustered another half dozen, if given the chance. Only seven of the filibustered 10 were renominated, giving the Democrats a victory over the other three. Only three of those seven are guaranteed an up-or-down vote by the Gang of 14. By our count, that's three for 16. Republican batting average: .187.

That's not even above the Mendoza Line for baseball, let alone anywhere near a political "compromise". That is a complete surrender. John McCain and the other members of the Seven Dwarves stripped the GOP of their majority status to guarantee less than 20% of their nominees a straight-up vote in the Senate. It's a shameful collapse of leadership and an abandonment of the trust GOP voters and activists put into the 2004 election that gave the Republicans an eleven-seat majority for this session.

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Tracked on May 29, 2005 1:57 AM