Compromise Advances Anti-Gay Appointment

Dems claim filibuster preserved, but Pryor headed for confirmation

Senate Republicans and Democrats have brokered a deal that would avert any confrontation over the use of the filibuster against Pres. George W. Bush’s judicial nominees.

For the past month Democrats had used the filibuster threat to hold up votes on seven judges Bush had picked for lifetime seats on federal appeals courts. Republicans, led by Senate Majority leader Bill Frist, a Tennessee Republican, had countered that any filibuster would be met with a rule change to eliminate the long-standing Senate filibuster tradition, a maneuver which had become known as the "nuclear option."

Seven Democrats and seven Republicans, independent of party leadership, worked out the deal hours before the issue came to a head. As stated in writing and signed by the 14, the Democrats would allow simple yes or no votes on three of Bush’s picks—Priscilla Owens for the New Orleans Fifth Circuit Court of Appeals, Janice Rogers Brown for the District of Columbia U.S. Court of Appeals and William Pryor, for Atlanta’s 11th Circuit Court of Appeals. The seven Republicans promised not to vote for a rule change to remove the filibuster.

The Democrats would preserve their right of filibuster, but agreed to use it only in extreme cases.

Owens was confirmed on Wednesday afternoon.

Immediately, some Republicans challenged the deal, calling into question its long-term stability.

Frist quickly distanced himself from the compromise, saying that he had not been a party to the negotiations, and that it "falls short of guaranteeing up or down votes on judicial nominations. It need to be carefully watched."

Frist had always insisted that all of Bush’s picks should be given straight up or down votes.

Other Republican senators also criticized the agreement.

"This so-called deal is disappointing for all of us who believe in the principle that persons should be accorded the fairness and due process of an up or down vote,” said Sen. George Allen of Virginia. “Everyone should also clearly see that ultimately, nothing has been settled when a vacancy arises on the U.S. Supreme Court."

Some of Frist’s supporters were also clearly unhappy. Tony Perkins, head of the ultra-conservative Family Research Council, told the Associated Press that "there will be repercussions for Republican senators who defected."

Frist and Allen are considered potential 2008 presidential candidates. Both draw major support from the Republican Party’s Christian conservative wing, the group most anxious to see all these contested judges confirmed.

Democrats tried to pass the compromise off as a victory.

"Armageddon had been averted, and thank God. The nuclear option is off the table and the checks and balances that have been an intrinsic part of the Senate for over 200 years have been preserved," said New York’s Sen. Chuck Schumer.

Democrats were clearly relieved that their ability to block a Bush nominee to the U.S. Supreme Court had been preserved, an especially critical option since there is expected to be at least one justice departing, either through death or retirement, in the near future.

Gay groups were not as keen on the compromise as Schumer.

Lambda Legal early on raised the cry about William Pryor, calling him one of the most anti-gay judges in the United States.

"Many nominees don’t have a clear record on LGBT issues, but Pryor has one that goes back through some of the most important cases in recent years," said Kevin Cathcart, Lambda’s executive director. "He has shown a complete disdain for the rights of gay people."

As Alabama’s attorney general, Pryor defended Texas’ anti-gay sodomy law in a friend-of-the-court brief he wrote for the Lawrence v Texas case before the U.S. Supreme Court. His brief compared the rights of gay people with "prostitution, adultery, necrophilia, bestiality, possession of child pornography, and incest and pedophilia."

While in a temporary appeals court seat in 2004, Pryor was the deciding vote on whether or not there would be a full appeals court hearing for a challenge to Florida’s law that banned gay people from adopting. The court was evenly split on whether or not to review a three-judge panel’s decision upholding the law. Without Pryor’s tie-breaker, a full hearing would have been held. Instead, the matter went onto the U.S. Supreme Court, which declined to hear the case, thus sustaining Florida’s ban on gay adoptions.

Had Pryor not been there as a temporary court member, the Florida law might have had a good chance of being struck down at the appellate level.

"Several judges on the appeals court wanted to hear the case and said the law raised ‘serious and substantial questions,’ but William Pryor kept that from happening. As a result, lesbians and gay men in Florida cannot adopt children who need permanent, loving homes," Cathcart said.

Michael Adams, Lambda’s director of education and public affairs, said the Senate compromise was not a victory; in fact, it was a great loss for the gay community.

"The filibuster option was preserved, but at the end of the day what matters is what judges get on the bench,” Adams said. “These judges have terrible track records with regards to civil rights."

Last week, the Log Cabin Republicans, a gay Republican group, and the Republican Majority for Choice, which is trying to push the party to embracing women’s right to choose, published an ad in Roll Call urging all "fair minded" Republicans to vote against Pryor’s nomination.

That is an unlikely event given recent history. Of all Bush’s appellate court nominees, not one has ever received a negative vote from a Republican, until this Wednesday.

Lincoln Chaffee from Rhode Island was the sole Republican defection on Priscilla Owen.

"We are very unhappy Pryor was part of the deal, but we’re hoping we’ll see dissension," said Praveen Fernandes, public policy advocate for the Human Rights Campaign (HRC), the nation’s largest gay advocacy group.

Fernandes also said that the one small victory was that at least the Democrats have retained the procedural ability to block future nominations.

"Had we lost, we would be unable to block a packing of the courts with far-right judges that most certainly would have occurred. That is a real nightmare," Fernandes said.

Matt Foreman, who heads up the National Gay and Lesbian Task Force, in a written statement, said his hopes for Bush responding to the compromise by reaching out to Democrats in making his judicial appointments are “not high.”

A cautiously positive note was sounded by Elliot Mincberg, legal director of People for the American Way, a group instrumental in lobbying for Democratic resistance to the remaining seven justices.

"This is clearly a defeat for the radical right as measured by their statements,” Mincberg. “They wanted all these nominees and all future nominees to sail right through. That won’t happen now."

Mincberg conceded that there is a very large downside to the imminent approval of Owen, Pryor and Brown, though he argued that without an agreement all seven justices would most likely have been approved anyway, perhaps through the suspension of the filibuster. That would have denied the Democrats of any leverage in blocking future picks that are of similar radical opinions.

"But as the agreement was written and signed by the 14 senators, the nuclear option is no longer available and the Democrats can still oppose extreme nominees,” Mincberg said. “We will have to see if Karl Rove still wants to try to subvert it and appeal to the radical right. Then we’ll know if it’s worth the paper it’s written on."

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