By MARGARET TALEV
April 22, 2005
The appeal by Sen. Arlen Specter, R-Pa., came less than an hour after two party-line 10-8 votes by his committee to advance California Supreme Court Justice Janice Rogers Brown, who is being considered for the U.S. Circuit Court of Appeals for the District of Columbia, and Texas Supreme Court Justice Priscilla Owen, who is being considered for the 5th U.S. Circuit Court of Appeals.
A third judge, Terrence Boyle of North Carolina, being considered for the 4th Circuit, was held over by the panel at the request of Sen. Edward Kennedy, D-Mass., who has requested access to thousands of the federal district court judge's unpublished opinions.
"We Republicans are threatening to employ the 'constitutional' or 'nuclear' option to require only a majority vote to end filibusters," Specter said in a speech on the Senate floor. "The Democrats are threatening to retaliate by stopping the Senate agenda on all matters except national security and homeland defense. Each ascribes to the other the responsibility for blowing up the place."
Specter went on to warn that the gridlock could coincide with a U.S. Supreme Court vacancy, as Chief Justice William Rehnquist fights cancer.
"If a filibuster would leave an eight-person court, we could then expect many 4-4 votes, since the court now often decides cases with 5-4 votes," said Specter. "A Supreme Court tie vote would render the court dysfunctional . . . the rule of law would be suspended on many major issues. I urge my colleagues on both sides of the aisle to study the issues and vote their consciences independent of party dictation."
Brown and Owen are among several judges resubmitted for consideration this year by President Bush after being blocked in years past by Democratic threats of filibuster.
Democrats characterize the nominees as ideological extremists and judicial activists. Republicans have characterized them as mainstream conservatives who keep their personal beliefs out of their legal decisions. They say Democrats who want to stick it to Bush are demonizing the nominees for political purposes.
Democrats have focused their criticism of Owen largely on rulings involving parental notification in abortion cases, suggesting she could not be trusted to uphold abortion rights for adult women. Democrats have criticized Brown for opinions they say go beyond existing law when it comes to advocating property owners' rights against government regulation and companies' shields against consumer lawsuits.
Despite their minority status, Democrats have been able to block 10 of Bush's nominees using the threat of filibuster, or endless debate. That's a tactic that has not historically been employed on judicial nominees, and Republican leaders say it goes against the Senate's role to advise and consent on executive branch nominees. Democrats say it's a legitimate tool and that they have used it on only 5 percent of the president's 215 nominees.
This year, Senate Majority Leader Bill Frist, R-Tenn., has threatened to put a stop to judicial filibustering by invoking a rule change dubbed the "nuclear option." It would allow a simple majority of the Senate to cut off debate on nominees, replacing a two-thirds rule that advocates say protects against extremist candidates of any ideology. Republicans hold 55 of 100 Senate seats.
Democrats say they don't intend to capitulate on Brown or Owen, and that if Frist goes forward with the nuclear option they'll protest by jamming progress on most matters short of national security.
Specter said Thursday that he has received indications from Democratic leaders that they may forgo a filibuster on Boyle and at least one other nominee, which he said he hoped would take some of the steam out of the nuclear option.
In any case, it is not clear Frist has enough of his own party's support to proceed. While Brown and Owen could come before the full Senate as early as next week, the growing sentiment on Capitol Hill among members of both parties is that nothing would happen until early May. And Democrats were gloating over a report in an insider publication, The Hill, about private GOP polling that suggests voters are cool to the nuclear option, making Republican senators uneasy about proceeding.
An assistant said the pollster would not be available for comment Thursday, and that the firm was not releasing its findings.
Sen. Charles Schumer, D-N.Y., said Republicans are nervous become this follows negative voter reaction to Bush's plan to reform Social Security by creating private investment accounts, and to Congress' involvement in trying to artificially prolong the life of Florida woman Terri Schiavo.
"We may actually win the war of public opinion," Schumer said.
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