If Senate Dems are going to filibuster another Bush judicial nominee, in turn prompting Senate Republicans to try the nuclear option, it apparently won’t be Thomas Griffith, a Bush nominee to the D.C. Circuit Court of Appeals.
Though the nomination seemed like a strong possibility for the first filibuster of 2005, late last week Senate Dems backed down and cleared the way for Griffith’s confirmation.
The Senate’s former top lawyer received bipartisan support yesterday for a seat on the U.S. Court of Appeals for the District of Columbia Circuit, putting him in line to become the first of President Bush’s second-term appellate nominees to be confirmed.
The Senate Judiciary Committee voted 14 to 4 in favor of Utah lawyer Thomas Griffith’s nomination for a seat on the court.
The four Democratic votes for Griffith — Sens. Charles Schumer (N.Y.), Richard Durbin (Ill.), Dianne Feinstein (Calif.) and Herb Kohl (Wis.) — would bring a final confirmation vote to at least 59 if all 55 Republicans vote for Griffith. That is one vote away from the 60 that preclude a filibuster. Democrats also have tended not to threaten filibusters on judicial nominees who receive Democratic votes in committee.
This came as something of a surprise. Griffith practiced law without a license in Utah for nearly five years, lost his D.C. law license, and passed up 10 opportunities to take the Utah bar exam. (Practicing law without a license is illegal.) Better yet, the American Bar Association gave Griffith the lowest possible passing grade for a judicial nominee. Just last fall, ranking Dem Pat Leahy saw this nomination going nowhere.
“This is a man who practiced law in two states in violation of the laws — what a fine, fine standard the White House has” for judicial nominees, Leahy said. “In my state he would be prosecuted. I’ve never seen anything so unbelievable.”
Yet, now Griffith has been cleared for confirmation, with some Dem support. What’s changed? How does a guy who practiced law illegally for several years get bi-partisan support to serve on the second highest court in the nation?
Tapped’s Jeffrey Dubner theorized that one of four things has happened:
* Democrats think that Republicans have or nearly have the votes for the nuclear option, and that easing up on some nominees will pull wavering Republicans back from the line.
* Republicans can’t get the votes for the nuclear option, and see confirming nominees as more productive than continuing a logjam. See Paul Crotty, confirmed on Monday, for more evidence.
* Democrats can’t stay united on Griffith, who has a reputation for integrity from his time as Senate legal counsel during Bill Clinton’s impeachment.
* Democrats arranged a deal: Griffith for … what?
At this point, given what we know, I assume it’s the first one, but with a minor twist. Dems still seem more than willing to block would-be judges with extremist backgrounds and records of right-wing activism. The knock on Griffith isn’t that he’s a lunatic, only that he illegally practiced law for about five years.
I suspect Senate Dems are willing to grant Griffith a pass to make something of a point –they’re not blocking all of the controversial nominees, which undermines the “obstructionist” attack, and they’re limiting their criticism for nominees whose judicial records are far outside the mainstream.
Ideally, a would-be judge who practiced law illegally and who got trashed by the American Bar Association would be the kind of nominee even Republicans would hesitate to support, but we’re dealing with unusual circumstances in which anything goes.
Post Script: Just out of curiosity, I sincerely wonder what it would take for a Bush judicial nominee to give Senate Republicans pause. Are there any limits to what they’d tolerate? If Bush tapped Pat Robertson for the federal bench, would Frist & Co. demand confirmation? I suspect the answer is probably yes.