Moving the Senate closer to a historic confrontation, the Republican-controlled Judiciary Committee yesterday endorsed two of President Bush's most controversial nominees to federal appellate court, and Democrats vowed once again to use the filibuster to block their confirmation.
The committee, voting 10 to 8 along party lines, endorsed Janice Rogers Brown of California for a seat on the U.S. Court of Appeals for the District of Columbia, and Priscilla Richman Owen of Texas for a seat on the U.S. Court of Appeals for the 5th Circuit. Both were nominated, endorsed by the Judiciary Committee and ultimately blocked by the Democrats in Bush's first term, along with eight other appeals court nominees.
Yesterday's action therefore sets up a replay of past battles but with potentially far greater consequences. Senate Majority Leader Bill Frist (R-Tenn.) has threatened to change Senate rules to ban filibusters for judicial nominations, clearing the way for them to be confirmed by a simple majority vote. But Democrats have threatened to bring the Senate to a virtual halt if Frist invokes what has been called the "nuclear option" on such nominations.
Republicans carefully chose their nominees for a Senate confrontation that could occur sometime in the next month, assuming that they can put Democrats, who pride themselves on appealing to female and black voters, on the defensive if they attempt again to deny two women, one of them an African American, an up-or-down vote.
But Democrats long have argued that race and sex aside, Owen and Brown are conservative ideologues whose views and writings make them unfit to serve in such sensitive, lifetime positions. Brown has said active governments lead to "a debased, debauched culture." Owen signed an opinion on abortion that drew a sharp rebuke from the man who now is Bush's attorney general, Alberto R. Gonzales.
"We're in the ramp-up to a great constitutional crisis," Sen. Charles E. Schumer (D-N.Y.) said.
Lawmakers said yesterday's committee vote removed any doubts that Senate GOP leaders are closing in on their threat to change the chamber's rules and ban filibusters of judicial nominees.
Republicans said voters will punish Democrats if they bog down the Senate and kill energy bills, spending measures and other potentially popular items. But Democrats said Republicans, especially Bush, are to blame for renominating the two women and other appellate court nominees who were blocked by filibusters in his first term.
"President Bush is responsible for the ill will that has plagued this body for the past few years and the potentially disastrous upending of Senate precedents that we may soon see," said Sen. Russell Feingold (D-Wis.).
Owen, a Texas Supreme Court justice, and Brown, a California Supreme Court justice, have solid conservative records and histories of making colorful remarks, which liberal groups have attacked for years. Democrats said their records, and nothing else, make them unsuitable for federal appellate court seats. "No one can seriously believe that objections to Justice Brown's nomination are motivated by racial or gender prejudice," said Sen. Edward M. Kennedy (D-Mass.).
Kennedy and others recited the most controversial of Brown's and Owen's statements and rulings. For instance, Brown said in an April 2000 speech, "where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. . . . The result is a debased, debauched culture which finds moral depravity entertaining, and virtue contemptible."
Committee Republicans defended the nominees. An opinion by Owen "shows great respect for Roe v. Wade," the landmark ruling that legalized abortion, said Chairman Arlen Specter (R-Pa.). Sen. Jeff Sessions (R-Ala.) said Brown's easy reelection to a new term on the California court proves she is not outside the mainstream of American jurisprudence.
The day's events came amid continued uncertainty in both parties as to whether Frist can muster the 50 votes he would need to change the filibuster rule (with Vice President Cheney's help as a tie-breaker). A filibuster can be ended only with 60 votes in the 100-member Senate. Frist wants to make judicial confirmation subject to a simple majority vote.
In a Senate floor speech, Specter urged Republicans and Democrats alike to be wary of their leaders' pleas. "I urge my colleagues on both sides of the aisle to study the issues and to vote their consciences independent of party dictation," he said.
Specter, who is battling Hodgkin's disease, said he has not decided how he would vote on the rule change. He said many Democratic senators "have told me that they do not personally believe it is a good idea to filibuster President Bush's judicial nominees," but "they gave in to party loyalty."
Some senators thought the rule-change showdown might occur next week, but the Senate will take up the highway bill instead. The following week, the Senate is in recess.
In the face of Democratic threats to bring most Senate business to a halt, GOP leaders face conflicting pressures from their constituencies. Conservative groups want action as quickly as possible to change the Senate rules, before there is a possible vacancy on the Supreme Court. Business lobbyists, on the other hand, prefer a delay to give the Senate more time to deal with legislative priorities.
Some party strategists believe GOP lawmakers might be wiser to let Democrats go ahead with filibusters, arguing that such a strategy actually hurt the Democrats during Bush's first term. But one Senate aide conceded yesterday that Democrats have scored points with the public with an aggressive campaign defending the use of the filibuster and said Republicans need to fight back on that front.
GOP lawmakers also have been warned that the context for the battle has changed in recent weeks and that the terrain may be less favorable than it was earlier this year, according to a Republican familiar with the discussions.
Lawmakers have been told the filibuster battle may now be seen less as a stand for principle -- that Democrats are abusing the rules by preventing up-or-down votes on judicial nominees -- and more part of a larger GOP strategy to bring the federal judiciary to heel. Complaints by House Majority Leader Tom DeLay (R-Tex.) and other Republican lawmakers about federal judges in the aftermath of the Terri Schiavo case have dramatically changed the framework for the Senate debate.