Wednesday, May 25, 2005


Senate deal should remove
judicial risk to Hawaii


A Senate compromise has avoided a showdown over use of the filibuster to block federal judicial nominees.

HAWAII can rest easier, at least temporarily, because of the compromise over use of the filibuster in the Senate to block nominees to federal appeals courts. The agreement appears to doom the nomination of William G. Myers III, an extreme conservative Californian, to the 9th Circuit Court of Appeals, which has jurisdiction over Hawaii. Credit Senator Inouye for his part in reaching the deal.

Inouye was among seven Democrats who struck the agreement with seven Republicans to avoid a parliamentary explosion that threatened to paralyze the institution. Sen. John McCain, R-Ariz., was the chief architect of the agreement. The negotiations were led by senior Sens. Robert C. Byrd, D-W.Va., and John W. Warner, R-Va., but the involvement of Inouye, a senator for 43 years, undoubtedly contributed greatly to the prestigious mix.

Inouye had to rise above hostility caused by past Republican tactics in dealing with nominees from Hawaii to the 9th Circuit. The GOP-controlled Senate refused to give James Duffy, former President Clinton's nominee, as much as a committee hearing. President Bush then chose Richard R. Clifton, who was confirmed to fill the lifelong judgeship. Both Duffy and Clifton are highly regarded, and Governor Lingle later named Duffy to the state Supreme Court.

Democrats on the bipartisan group agreed not to use the filibuster against previously blocked appeals court nominees Priscilla R. Owen, Janice Rogers Brown and William Pryor. No such agreement was made for the nominations of Henry Saad to the Cincinatti-based 6th Circuit and Myers to the 9th. Implicit is the Republicans' agreement not to support a rule change -- the so-called nuclear option -- to thwart filibusters in those two cases and other "extraordinary" circumstances.

As a 9th Circuit judge, Myers would pose a threat to Hawaii's pristine environment. He has spent much of his career lobbying for mining and ranching interests and has expressed disdain for federal environmental rules.

Myers also could be expected to oppose the rights of native Hawaiians. The National Congress of American Indians has opposed his nomination because of his "deep lack of respect and understanding of the unique political relationship between the federal government and tribal governments."

Inouye recalled that he sided with Republicans against the majority Democrats during his first year in the Senate to save the filibuster as a parliamentary tool to protect the minority party's rights. By rescuing the filibuster again, he said, "We have opened up a bridge for greater dialogue, founded on mutual respect, for the benefit of all the American people."

The filibuster rule may seem archaic, but it forces the majority party to respect the minority, leading to the civility for which the Senate has been known. Senators from both parties are aware, as Inouye put it, that "today's minority frequently becomes tomorrow's majority."

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