Senate confirms Brown as appeals court judge

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON — Two years after President Bush first nominated her, the Senate voted 56-43 Wednesday to confirm Janice Rogers Brown as a judge on the court of appeals for the District of Columbia Circuit.

One Democrat — Sen. Ben Nelson of Nebraska — joined Republicans in voting for confirmation.

Following Brown’s confirmation, the Senate voted 67-32 to end a filibuster of former Alabama Attorney General William Pryor — the last of the three nominees whom seven Democrats agreed to clear in exchange for Republicans not banning the stalling tactic.

A confirmation vote is set for Pryor on Thursday at 4 p.m.

Standing just off the Senate floor, Nan Aron, president of the Alliance for Justice, a coalition of liberal, women's rights and environmental groups, called Brown's confirmation "the best evidence of the need for a filibuster. The fact that there are no surprises says it all: The Republicans vote in lockstep and that is the best argument for maintaining the ability of the Senate to filibuster."

Since it takes 60 votes to overcome a filibuster, 41 senators have the ability to block a nominee with majority support from ever getting a vote on confirmation.  

Despite the filibusters that slowed his nominees in 2003 and 2004, gradually, Bush is nudging the federal appeals courts in a more conservative direction.

By the end of his eight years in office President Clinton had nominated and seen confirmed 66 appeals court appointees.

At this point, according to the Federal Judicial Center, Bush has seen 38 of his appeals court nominees confirmed, although one Bush appointee, Michael Chertoff, has left the federal bench to become secretary of homeland security.

There are 15 vacancies on the federal appeals courts.

A vote on Brown's nomination had been blocked on Nov. 14, 2003, because her supporters could not get the 60 votes needed under Senate rules to end prolonged debate, known as the filibuster.

On that vote, 53 supported Brown and 43 opposed her. Two Democrats, Nelson and Sen. Zell Miller of Georgia, voted with 51 Republicans to end debate and move to a vote.

Agreement on unblocking nominations
Under a bipartisan memorandum of understanding signed May 23, seven Democrats agreed to not support filibusters of Brown and two other Bush nominees, Priscilla Owen, who took her oath of office Monday as a federal appeals court judge for the Fifth Circuit, and Pryor.

After Democrats used filibuster threats in 2003 and 2004 to block a vote on Pryor's nomination, Bush gave him a recess appointment to the appeals court on Feb. 20, 2004, saying, "If Attorney General Pryor were given a vote on the floor of the Senate, he would be confirmed."

Once Pryor is either confirmed or voted down, the filibuster of judicial nominees again becomes a live option, if any of the seven Democrats who signed the May 23 accord decides that a Bush judicial nomination has created “extraordinary circumstances.”

On Tuesday, one Republican, Sen. George Allen of Virginia, urged a vote on one of the Bush judicial nominees not covered by the "no-filibuster" pledge in the May 23 deal: Idaho lawyer and former Interior Department official William Myers.

Bush has nominated Myers to serve on the Ninth Circuit Court of Appeals, which has jurisdiction over nine Western states.

"The Ninth Circuit is Exhibit A of activist judges," said Allen. "They are the ones who struck down the Pledge of Allegiance in schools; they have been reversed by the Supreme Court more than any other circuit in this country; they are in dire need of some common-sense men and women on that court who understand that the role of the judge is to apply the law, not invent it," Allen said.

But Senate Majority Leader Bill Frist avoided Tuesday giving any commitment on when Myers would get an up-or-down vote.

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