As few as two or three uncommitted GOP senators have left Democrats and Republicans uncertain who might prevail in an eventual showdown in the battle over judicial filibusters, sources in both parties said yesterday.
The uncertainty has helped spur a recent compromise offer from Democrats and a go-slow approach by Republican leaders, even as an anticipated vacancy on the Supreme Court draws nearer. The push to persuade the small cluster of holdouts to support a ban on filibusters of judicial nominees is seen as a crucial test of Majority Leader Bill Frist's tenure as the chamber's top Republican, senators in both parties say.
Senate Majority Leader Bill Frist (R-Tenn.) needs to keep his GOP colleagues from opposing an end to judicial filibusters.
(Melina Mara -- The Washington Post)
Frist (Tenn.) in recent weeks has declined to speculate on whether he has the votes to change the rule, but his top associates predict he will have them. Still, they say the vote could be excruciatingly close, requiring Vice President Cheney to be in the presiding officer's chair to break a possible tie.
"It's looks like it's going to be the vice president," Sen. Trent Lott (R-Miss.), who is helping Frist line up support, said in an interview yesterday. "You never have the votes until you have the votes," Lott said. "You've got your clear voters, you've got your nervous nellies, and you've got those who will never tell you until the vote is taken. . . . In the end I think they'll be there because [Frist] has been very restrained" in handling the issue, he said.
Republicans are angry that Democrats have used the filibuster -- which can be stopped only by 60 votes in the 100-member Senate -- to block 10 of President Bush's appellate court nominees. Senate GOP leaders want to ban such filibusters, but some of their 55 members dislike the idea. All 44 Democrats and the chamber's lone independent flatly oppose it.
Democrats say a two-thirds majority is required to change Senate rules, but Republicans plan to use a constitutional argument to contend that a simple majority will suffice to ban judicial filibusters. For three months, lawmakers, aides and lobbyists have speculated on whether Frist can muster the 50 votes needed to enable Cheney to put him over the top.
Frist can lose only five Republicans, and three appear almost surely gone. Sens. Lincoln D. Chafee (R.I.), John McCain (Ariz.) and Olympia J. Snowe (Maine) have condemned the proposed rule change so sternly that party leaders assume they will side with Democrats. Many Republicans also expect to lose Sen. Susan Collins (Maine), although she remains publicly uncommitted. Collins "believes that the filibuster has been overused but would like to see the situation resolved through negotiation rather than a rule change," her office said yesterday.
If Collins, Chafee, McCain and Snowe oppose the change, then Frist could suffer only one more GOP defection. Speculation hangs most heavily on Sens. John W. Warner (Va.), Chuck Hagel (Neb.) and Arlen Specter (Pa.), all of whom say they are undecided.
Senators and their aides, who generally speak only on the condition of anonymity when handicapping the votes because of the topic's sensitive nature, differ on where the three might land. Hagel, considering a presidential bid, may be reluctant to anger GOP activists by opposing the rule change, several colleagues said. Specter's chairmanship of the Judiciary Committee could make it difficult for him to buck the leadership, some say, but starting a new six-year term at age 75, and fighting cancer, may free his hand. "He may figure this is his last term and he's going to do what he wants," said Bruce Fein, a conservative lawyer who follows the issue closely.
Fein said Warner "is not super-solid, but he'll probably go along" with Frist. Others are less sure, and Warner has stuck to the noncommittal statement he issued in January. "I tend to be a traditionalist, and the right of unlimited debate has been a hallmark of the Senate since its inception," he said at the time. "Without question, though, I am strongly opposed to the use of the filibuster to block judicial nominations."
Warner said in an interview yesterday, "I am right where I was -- I am not moving." He said he has talked with Frist, top Democrats and others, but no one has pressured him. "Wherever we meet now is very constructive," he said.
Lott said Warner and Hagel "are struggling with the ramifications" of a filibuster rule change, "but I think a lot of that will be addressed to their satisfaction."
Some outside activists view Frist's continued postponement of a showdown vote and a compromise proposal as evidence of his uncertainty about the vote count. "The reason they haven't had the vote on it is because Frist doesn't have the votes," said Jennifer Stockman, national co-chair of the Republican Majority for Choice, which opposes the rule change.