By MARGARET TALEV and LAWRENCE M. O'ROURKE
May 24, 2005
Declaring that some senators have gone too far in recent years in filibustering judges, the group stepped back from what they described as a dangerous precipice that could have permanently altered the balance of power between the White House and Congress.
As soon as the agreement was reached, Senate Majority Leader Bill Frist, R-Tenn., withdrew his threat to invoke the option Tuesday but said he would hold it in reserve.
While the deal cleared the way for the confirmation of at least three of Bush's judicial nominees, it was somewhat vague on the most important question underlying the debate - the role of the Senate minority in considering Bush's expected nomination sometime this year of a Supreme Court justice.
Senate Minority Leader Harry Reid, D-Nev., said Democrats were less likely to be tempted to filibuster a Supreme Court nominee if President Bush would exercise "a little more humility" and begin consulting with the minority party on his choices.
"We're not out looking to pick fights with President Bush," he said. Based on preliminary lists of some candidates Reid has seen circulated, he said, "These are people we're happy to take a look at."
"The Senate won and the country won," Sen. John McCain, R-Ariz., one of the principal architects of the deal, told reporters at the conclusion of negotiations.
One of the many things that remained unclear Monday night was whether Frist would have had the 51 votes needed to bring about the change in rules.
The senators who stood beside McCain in the Capitol expressed hope that the deal would end the bitter partisanship that has divided the Senate for the last few years. Sen. Mike DeWine, R-Ohio, said the deal relied upon the "good faith" of senators rather than on the precise language of the document they settled upon.
The "good faith" provision was the critical element in a "commitment on future nominations" agreed to by the 14 senators.
The commitment read: "Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist."
The senators also agreed that for the next 18 months of the current Congress - that is, until after the mid-term election of 2006 - they would resist any change in Senate rules regarding filibusters.
On rule changes, their statement read: "In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent on" the rule governing cloture that ends filibusters.
The deal also may have made a jumpstart toward consolidating power in the Senate in the center, where the 14 senators - seven Republicans and seven Democrats - and their allies may now constitute a new force against the more aggressive and ideological members of both the left and right.
"In a Senate that has become increasingly partisan and polarized, the bipartisan center held," said Sen. Joe Lieberman, D-Conn. "We did it for a larger purpose. If the nuclear option had been passed I think it would have led to a cycle of increasing divisiveness in the Senate and decreasing productivity."
But Sen. John Warner, R-Va., another of the 14, said the bipartisan group is "not trying to set ourselves up as some mini-structure" to challenge the two party's Senate leaders. Asked whether the Republicans who broke ranks with Frist should expect a backlash from conservative groups who had demanded the nuclear option, Warner said, "If you can't take the heat, get out of the kitchen."
Reid could hardly contain his excitement when he said that the nuclear option had been removed from the agenda.
"We have sent President Bush, Vice President Dick Cheney, and the radical arm of the Republican base, an undeniable message," Reid said. "Abuse of power will not be tolerated. Not be tolerated by Democrats or Republicans. And your attempt, I say to the vice president and the president, to trample the Constitution and gain absolute power is over."
The deal means that the filibuster against at least two of Bush's nominees, Priscilla Owen of Texas for the 5th U.S. Circuit Court of Appeals in New Orleans and Janice Rogers Brown of California for the Court of Appeals for the District of Columbia, will end, and they are virtually certain to win confirmation votes by wide margins.
The deal also guarantees that there will be no filibuster against Judge William Pryor, also an appeals court nominee.
"I'm very pleased that each and every one of the judges . . . will receive the opportunity of an up or down vote," said Frist.
But two other Bush nominees - William Myers and Henry Saad - do face filibusters and may not be confirmed.
The deal produced a palpable sense of relief in the Senate, where many Republicans had spent weeks refusing to say how they would vote. All 44 Democrats and one independent, James Jeffords of Vermont, had said they would vote against the rule change.
In addition to McCain, Warner, Graham and Lieberman, the 14 senators were Republican Sens. Olympia Snowe and Susan Collins of Maine, Mike DeWine of Ohio and Lincoln Chafee of Rhode Island; and Democratic Sens. Robert Byrd of West Virginia, Ben Nelson of Nebraska, Mark Pryor of Arkansas, Mary Landrieu of Louisiana, Daniel Inouye of Hawaii and Ken Salazar of Colorado.
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