Senate Democrats develop new filibuster strategy
By Charles Hurt
THE WASHINGTON TIMES
June 13, 2005

Senate Democrats are in the early stages of several filibusters against executive nominees that they hope will be more effective than those they have abandoned in recent weeks against President Bush's judicial appointments.
The new filibusters are not based publicly on ideologies -- as with several of the nominees to the federal bench -- but on demands for additional information from the administration.

Already stalled under that strategy is John R. Bolton, Mr. Bush's pick to be ambassador to the United Nations.
Also, Democrats led by Sen. Edward M. Kennedy of Massachusetts stopped a federal appeals court nominee last week by demanding that more of his unpublished legal opinions be provided to them.

Mr. Bush nominated U.S. District Judge Terrence W. Boyle of North Carolina more than four years ago to the 4th U.S. Circuit Court of Appeals, based in Richmond. Judge Boyle had a hearing more than three months ago and has been scheduled numerous times for a Senate Judiciary Committee vote. Last week, however, Democrats on the Judiciary Committee demanded that Judge Boyle's nomination wait another week and that the Bush administration produce more of his unpublished opinions. Committee Chairman Arlen Specter, Pennsylvania Republican, reluctantly agreed.

"Senator Kennedy was very upset with the failure of the unpublished opinions to be unearthed, or at least some of them," said Sen. Charles E. Schumer, New York Democrat.

Mr. Schumer was asked whether Democrats would filibuster Judge Boyle if Republicans don't produce additional unpublished opinions.  "We'll have to see what happens," he said. "First, we want to see if there's a good-faith effort to get them. It is hard to get unpublished opinions.  "Second, when we get them, if there's no smoking gun it's not going to matter," Mr. Schumer said. "If we think there really is a smoking gun -- that we need more time to go forward -- so be it." 

The strategy is similar to the one used against Mr. Bolton.
When Mr. Bolton was nominated, many Democrats announced their opposition because of his harsh statements about the United Nations.  But by the time Mr. Bolton's nomination reached the floor three weeks ago, Democrats had boiled down all their objections to one demand. They refused to allow a final up-or-down vote until the White House releases specific information about Mr. Bolton's time as undersecretary of state for arms control and international security. 
 
When the White House refused, Democrats voted to filibuster, arguing that it was a matter of protecting the Senate as an institution.  "I think it's important that we recognize that the White House has an obligation to respond to a branch of government that is its equal," Senate Minority Leader Harry Reid, Nevada Democrat, said last week. "That's hard for the administration to accept, but I think they're going to have to accept that before this Bolton thing moves on any more." 

The strategy also mirrors Democrats' initial filibuster against a Bush nominee, that of Washington lawyer Miguel Estrada, who was nominated to the U.S. Circuit Court of Appeals for the District of Columbia. He withdrew his name after more than two years awaiting confirmation. Democrats began that filibuster with a demand for legal work product from his years in the Clinton administration.

When a deal was reached last month on judicial filibusters, nominees such as Judge Boyle were not mentioned.
Democrats have expressed displeasure about Judge Boyle's conservative legal thinking, but whether that amounts to an "extraordinary circumstance" -- grounds for filibuster under last month's deal -- has not been determined.
If Democrats mount a filibuster that Republican signers to the deal consider frivolous, then the "nuclear option" to ban judicial filibusters altogether would be back on the table.