Gang of 14 Chickening Out?

The Hill reports on the meeting of the 'Gang of 14' to discuss the nominations of Terrence Boyle and Brett Kavanaugh. Reading tea leaves, it looks good for Kavanaugh and bad for Boyle:

Gang balks on Judge Boyle
By Jonathan Allen

The outlook for Judge Terrence Boyle, nominated to the 4th U.S. Circuit Court of Appeals, became cloudier yesterday as Democrats reiterated opposition to him and some Republican members of the influential Gang of 14 declined to offer support.

Asked whether President Bush should withdraw Boyle’s nomination, Sen. Olympia Snowe (R-Maine) said: “That’s for the president to decide. In the meantime, we’ll make our own decisions about what should happen.”

Democratic members of the Gang of 14, a bipartisan group of centrist senators who have served as gatekeepers on judicial nominees for the past year, plan to send a letter today to Republican and Democratic leaders asking that Boyle have a second committee hearing before his nomination is brought to the floor.

The Gang met yesterday afternoon in the offices of Sen. Ben Nelson (D-Neb.) to discuss several judicial nominations, including Brett Kavanaugh’s to the D.C. Circuit Court of Appeals and Boyle’s. Several members of the Gang of 14 said they would reserve judgment on Kavanaugh until after a Judiciary Committee vote on him today, but none suggested that the nomination rises to the level of “extraordinary circumstances” that they have identified as the bar for sustaining a filibuster against judicial nominations.

“There’s nothing extraordinary about him” other than his qualifications, said Sen. Lindsey Graham (R-S.C.), a member of both the Gang of 14 and the Judiciary Committee.

...Kavanaugh navigated his way through a rare second Judiciary Committee hearing Tuesday and is expected to win a panel vote today that would clear his nomination for floor consideration.

But Democrats appear to be more focused on a possible confirmation fight over Boyle, who was nominated to the 4th Circuit. That is the same court from which Judge J. Michael Luttig announced his resignation yesterday to take a job with Boeing.

In their arguments against Boyle, Democrats cite the number of times his decisions have been overturned by higher courts.

Minority Leader Harry Reid (D-Nev.) yesterday morning renewed his call to forestall a Boyle confirmation vote.

“I hope Republicans of goodwill rise up and say, ‘Enough is enough,’” Reid said. “I hope we don’t have to vote on Boyle.”

Sen. Susan Collins (R-Maine), another member of the Gang of 14, answered with a laugh when asked whether she would like to see Boyle get a vote. Graham indicated that he would prefer to deal with one nominee at a time.

The article reports that the Senate is likely to return to judicial nominations once debate on immigration reform is concluded. That could be more than 2 weeks away, but also could come sooner.

Are the Republicans in the Gang going to agree to confirm Kavanaugh now, and then oppose Boyle later? That might hold attraction to some of them. For example, it would help Lincoln Chafee to avoid upsetting conservatives before his primary. If the Democrats in the Gang join in support of Kavanaugh, Chafee could do so as well without looking 'too conservative.' If he later joins Democrats in opposition to Boyle, he could wait to announce such a decision until after his primary. Perhaps this would be part of another deal for the Gang, in which they allow through 3 or 4 'controversial' nominees, while blocking Boyle.

This result would be unacceptable, but I fear that since making a deal 'worked' for the Gang once - earning them the thanks of liberal newsmen everywhere - they might well be inclined to do it again. Among other things, it would let them kick the can a little further down the road.

At the same time, such an outcome would hold real problems for at least 2 Republicans. It would make Frist look neutered once again, which will be a blow to any future Presidential campaign. And John McCain won't want to be perceived as once again frustrating the will of the Senate Majority to confirm conservative jurists. Both these Senators should really want an outcome where both Kavanaugh and Boyle are approved - whether with Democratic votes against a filibuster, or through the 'nuclear option.' Perhaps this is Senator McCain's golden opportunity to show his leadership skills. He ought to rally the 7 Republicans in the Gang of 14 to support Boyle and Kavanaugh.

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