This deal is disappointing -- but it will prove itself worthy if it ensures no more filibusters of judicial nominees. If it doesn't, then the deal is meaningless, and we're back to the Byrd option once again. Filibuster fight left rumblings along the sidelines

By Senator John Cornyn

More than four years ago, President Bush nominated Texas Supreme Court Justice Priscilla Owen to the federal court of appeals.

And more than four years ago, the top Democrat on the Judiciary Committee predicted her swift confirmation -- stating he was encouraged by the nomination of Owen and 10 others and that "I know them well enough that I would assume they'll go through all right."

Yet it was only after four years of false attacks and an unprecedented effort to impose a supermajority vote requirement for confirming judges that a partisan minority of senators finally backed down. And last week, a bipartisan majority of the Senate finally got its opportunity to confirm this brilliant jurist and fine Texan to the federal bench. So what now?

Owen, California Supreme Court Justice Janice Rogers Brown and former Alabama Attorney General William Pryor are finally receiving up-or-down votes as the result of a deal reached last week by 14 senators. That agreement also states filibusters of judicial nominations are strictly forbidden except under "extraordinary circumstances."

Because of this agreement, the Senate did not vote last week on whether to use traditional means to restore Senate traditions -- that is, whether to exercise the so-called Byrd option, named after the former Democrat majority leader, to restore the 214-year Senate tradition of a majority vote for confirming judges.

I was not a party to this deal. I firmly believe we should restore the Senate tradition of majority vote on all judicial nominations. And I am disappointed that the Senate did not do that last week.

It is nevertheless important to recognize three important elements of the deal reached by these 14 senators:

Indeed, this is the stated intent of at least four of the Republican senators who signed the agreement.

One senator made clear that "we have the right to invoke the constitutional option that we were going to vote on today. That option is still on the table and will remain on the table in the future."

Another senator stated that, under the agreement, "the fact that you're conservative is no longer an extraordinary circumstance." That senator further declared he would vote for the Byrd option if it becomes necessary in the future.

And at least two other senators affirmed the Byrd option remains available in the event of a future filibuster of a judicial nominee. One even promised that "there's not going to be a filibuster of a Supreme Court" nominee.

In short, this deal is disappointing -- but it will prove itself worthy if it ensures no more filibusters of judicial nominees. If it doesn't, then the deal is meaningless, and we're back to the Byrd option once again.

The agreement establishes a benchmark by acknowledging that Owen, Brown and Pryor should never have been filibustered in the first place and that the Senate must not filibuster similarly qualified nominees in the future.

Otherwise, "the spirit and continuing commitments made in this agreement" will have been violated, and in that event, the signatories will be -- and should feel -- free to take action to restore the 214-year Senate tradition of majority vote.

Sen. John Cornyn (R-TX) is a member of the Senate Judiciary Committee and former member of the Texas Supreme Court. This Commentary first appeared in the San Antonio Express News.

June 2, 2005
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