By LAWRENCE M. O'ROURKE
May 19, 2005
Senate Majority Leader Bill Frist, R-Tenn., said that unless Democrats agree to an up-or-down vote on the nomination of Priscilla Owen of Texas to a federal appeals judgeship, he would initiate an extraordinary step that would ban the use of the filibuster in judicial nominations, including any openings on the U.S. Supreme Court.
Democrats accused Frist, who heads a majority bloc of 55 Republicans in the 100-seat Senate, of violating Senate rules and tradition designed to protect the rights of the minority in the chamber.
Frist replied that by using filibusters to halt judicial nominees, Democrats were "shattering" the long tradition of up-or-down votes on those picked by the president for lifetime positions on the federal bench.
Though not agreeing to any compromise, Frist promised to listen to proposals to end the fight over the filibuster.
But Frist rejected a proposal by Senate Minority Leader Harry Reid, D-Nev., that all 100 senators meet behind closed doors with no one else present to search in an unscripted and uninhibited session for a way out of the controversy that threatens long-term disruption to the Senate.
Meanwhile, as senators spoke on the floor for and against the nominations of Owens and others chosen by Bush for federal appeals courts, groups of senators met privately in search of a compromise.
With senators engaged in assigning blame for the nasty fight, Senate Judiciary Committee Chairman Arlen Specter, R-Pa., declared: "Both sides, Republicans and Democrats, have been at fault. Both claim they're the victims."
Specter said the Senate faces "dual threats," one from the filibuster, the other from using the so-called "nuclear option" - rather than the normal Senate rules - to wipe out the filibuster as a tool against judicial nominees. Specter said the two threats add up to "mutually assured destruction" for the Senate and its tradition of comity and unlimited debate.
Specter was one of a handful - perhaps six - senior Republican senators at the fulcrum. Republicans pressed them to stick with Frist. Democrats leaned on them to break with Frist in the interest of preserving the rights of the congressional minority.
All 44 Democrats and the Senate's lone independent are pledged to vote against the ruling - probably announced by Vice President Dick Cheney - that would wipe out the judicial filibuster. The filibuster could be preserved only if six Republicans vote alongside the Democrats.
Frist is sounding and acting as a leader who knows that he has the votes to win. But Democrats dispute that, claiming that many Republicans, uneasy about ending the historic filibuster, are pleading with them to find a compromise.
Sen. Max Baucus, D-Mont., reminded Republicans that the Senate has gone back and forth several times between Republican and Democratic control in the last two decades, and that today's majority could well be next year's minority. Sen. John McCain, R-Ariz., made the same argument in appealing for a deal.
Among senators conducting private negotiations were Democrats Joe Lieberman of Connecticut and Ben Nelson of Nebraska and Republicans Olympia Snowe of Maine and Trent Lott of Mississippi. But almost every senator seemed to be involved to some extent on an issue that runs far deeper than legislation or appropriations.
The Senate swirled with reports, perhaps more in the nature of rumor than solid information, that the senators were exchanging proposals that would make unnecessary any exercise by Frist of the so-called "nuclear option."
One proposal included Democrats agreeing to refrain from any filibuster against a given number - five or more - of the seven controversial appeals court nominees Bush has submitted to the Senate.
In return, several Republicans would cross over and join Democrats in preserving the filibuster as a tactic against future nominations - on the understanding that it was available for use in any Supreme Court nomination fight.
Another report, provided by a Senate staff member, was that Democrats might even agree to go along with confirmation of all of Bush's current appeals court nominees if Republicans acknowledged in effect that Democrats could filibuster a Bush nomination to the Supreme Court.
The next Supreme Court nominee was on the minds of senators and advocates on both sides who mounted advertising and lobbying campaigns.
Some senators and their allies are clearly looking for a way to secure approval - or block approval - of a conservative Supreme Court nominee who might reverse or even partially roll back court rulings on abortion, gay rights, affirmative action, environmental rules and other controversial topics.
Although there are no vacancies on the nine-member Supreme Court, officials in Washington widely anticipate an opening this summer.
Under the nuclear option proposed by Frist, the standing procedure that allows senators to talk at length about a judicial nomination with the intent of blocking it would be ended.
Current rules require 60 votes to end unlimited debate - in effect requiring many nominees to acquire a supermajority to win confirmation.
By using the nuclear option - so dubbed initially by Lott, the former Senate GOP leader - Frist would effectively cut back the number of votes required to 51, or even 50 if the vice president as presiding officer is ready to cast the tie-breaking vote.
Reid has made clear that if Frist goes ahead, as soon as next week, with his plan to abolish the filibuster against judicial nominees, Democrats will invoke other Senate rules that could make operations cumbersome, while stopping short of shutting the chamber down.
In one bow to tradition, Senate leaders worked out a debate procedure that gives Republicans and Democrats alternating hours to present their case with floor speeches.
For the moment, there has been no announcement by Frist on when he will invoke the nuclear option. Some senators, who said they didn't know for sure, said they expected it by the middle of next week. But others, with equal uncertainty, said they expect the critical moment to occur in June, after senators return from a Memorial Day recess that may give them time to assess public attitudes.
Sen. Charles Schumer, D-N.Y., challenged Frist by noting that he was one of a handful of Republican senators who voted in 2000 on a cloture vote in favor of a filibuster against Richard Paez, nominated by President Clinton to the federal bench. Paez was later confirmed.
Frist told Schumer that "the issue is not cloture votes, per se. It's the partisan leadership-led use of cloture votes to kill, to defeat, to assassinate these nominees."
Sen. Richard Durbin, D-Ill., chided Frist for using the word "assassinate" during a debate on federal judges.
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