The Senate is headed toward turmoil unless it can resolve its bitter impasse over judicial nominees, a key Republican warned yesterday. But neither party showed signs of yielding as senators scheduled a hearing next week for one of the 10 appointees blocked last year.
Judiciary Committee Chairman Arlen Specter (R-Pa.), breaking from GOP orthodoxy that blames only Democrats, said both parties have allowed the battle over federal judgeships to escalate to a dangerous point where neither side is willing to back down. He said he is not sure Republicans have enough votes in the full Senate to confirm appellate court nominee William G. Myers III, but he will formally restart the contest by conducting a committee hearing Tuesday.
The committee, which Republicans control 10 to 8, will endorse Myers's nomination, Specter told reporters, but "when it comes to the floor, as you all know, it is another matter."
Senate Democrats last year used actual or threatened filibusters to thwart several of President Bush's most conservative judicial nominees, calling them outside the political mainstream. Republicans hold 55 of the Senate's 100 seats, still short of the 60 votes needed to end a filibuster and bring an issue to a vote on the floor.
Democrats say Bush has directly challenged them by renominating Myers and other appointees blocked last year. Senate Majority Leader Bill Frist (R-Tenn.), calling filibusters of judicial nominees intolerable, has threatened to rule them unconstitutional. Senators call that scenario the "nuclear option" because Democrats vow to grind the Senate to a standstill if it happens.
Specter said he will start this year's judicial battles with Myers "because I count 58 votes" toward halting a filibuster on his nomination, "and that's within hailing distance of 60."
Democrats, however, said they know of no likely new defections to Myers's side. "I think it'll be hard for them to pick up the other two" votes, said Sen. Charles E. Schumer (D-N.Y.), a Judiciary Committee member.
Specter, 75, spoke with reporters in the Capitol for the first time since announcing he has cancer of the lymph system and is undergoing chemotherapy. He said he expects to be able to handle the committee's substantial workload, which will include a hearing next Thursday for Terrence Boyle -- renominated to the Court of Appeals for the 4th Circuit -- and district court nominees Robert J. Conrad and James C. Dever III.
Speaking of the impasse over judges, Specter said that "if you trace it back historically, both parties are at fault." A Democratic-controlled Senate held up many of President Ronald Reagan's nominees, he said, and a GOP-controlled Senate used stalling tactics to block many of President Bill Clinton's nominees. "We exacerbated the problem," Specter said.
More recently, he said, Democrats used filibusters and Bush made interim appointments of federal judges during congressional recesses, "which is a little unheard-of when the Senate has made a rejection of nominees. So each side ratcheted it up, ratcheted it up, ratcheted it up, until you have a situation today where . . . no one wants to back down and no one wants to lose face."
Specter said he does not know whether Frist can muster 51 votes to deploy the "nuclear option" -- which would not be subject to a filibuster -- and declined to say how he would vote. "I'm going to exercise every last ounce of my energy to solve this problem without the nuclear option," he said. "If we have a nuclear option, the Senate will be in turmoil and the Judiciary Committee will be hell."
Whereas some GOP senators have said filibusters of judicial nominees are never justified, Specter said: "I can see a filibuster in an extraordinary case," but "not when it is an everyday practice."
Myers, a Virginia-born lawyer now based in Idaho, has been renominated for the U.S. Court of Appeals for the 9th Circuit, which is based in San Francisco and covers Alaska, Hawaii and a handful of other western states. He is a past Interior Department solicitor and mining lobbyist, and some environmental groups say he is too friendly to mining and grazing interests. Schumer said his record, "particularly on environmental issues, is off the deep end." Myers's supporters reject such criticisms, saying the nominee's record is one of fairness and common sense.
Schumer told reporters that Senate Democrats see no reason to back Myers and other nominees who were turned back last year "unless there's new and dramatic information. . . . I think the president nominating them [again] is, sort of, a poke in the eye." Of the nominees sent back by Bush, Schumer said, "I think [Myers] would have the easiest chance of all of them, and I don't think he has the votes yet, either."
Liberal groups also signaled no letup in their campaign against conservative judges. "Rather than starting a new Congress with judicial nominees commanding bipartisan support, they immediately renew the judicial wars with polarizing nominees who were blocked in the previous Congress," said Ralph G. Neas, head of People for the American Way.