Bush's Call for Vote on Judges Adds Urgency to Filibuster Battle

By Jim VandeHei and Charles Babington
Washington Post Staff Writers
Tuesday, May 10, 2005

President Bush yesterday called for an immediate vote on two of his most controversial judicial nominations, increasing pressure on Senate Republicans to consider a historic rule change that would make it easier for him, and future presidents, to reshape the federal bench, including the Supreme Court.

Bush issued a statement from Europe demanding an "up-or-down vote" on Priscilla R. Owen and Terrence W. Boyle for seats on appellate courts only hours before Attorney General Alberto R. Gonzales held a news conference to cast the judicial dispute as one of "fairness." Despite a flurry of congressional negotiations yesterday, Senate Republicans appear increasingly likely to exercise the "nuclear option" of changing Senate rules to prevent Democrats from filibustering Bush's judicial nominees.

The president, who initiated the conflict by renominating judges whom Democrats had blocked during his first term and demanding new votes this year, is essentially guaranteeing a showdown that is as much about the power of the presidency as Democratic obstinacy, according to numerous government scholars. The result could be a more powerful White House, a weakened Congress and the possible erosion, if not end of, the most powerful tool available to the minority party, the filibuster, the scholars said.

"This is being done to . . . help a president achieve what he wants to achieve," said former representative Mickey Edwards (R-Okla.), now a scholar at the Aspen Institute. "It's a total disavowal of the basic framework of the system of government. It's much more efficient [for Bush], but our government was not designed to be efficient."

The filibuster allows a minority in the Senate to block almost any legislation as long as it can muster at least 40 votes. It is considered one of the great institutional checks on the influence of the majority party and sometimes the presidency. If it is eliminated for judicial nominations, Bush will enjoy greater latitude in filling vacancies on appellate courts, which are one step below the Supreme Court.

With 55 Republicans in the Senate, Bush would win the right for up-or-down votes -- and almost certainly secure approval of seven judges blocked by Democrats in the first term and renominated earlier this year, according to GOP and Democratic officials. "It certainly has the potential to reduce the Senate's power vis-a-vis the president," said Carl Tobias, a University of Richmond law professor. "It's one less restraint."

The most far-reaching implication of the rule change could come this summer, if one or more Supreme Court justices retire. Without the possibility of a filibuster, it would be much easier for Bush to appoint a conservative to the Supreme Court who might not make it if at least five Democratic votes were need to reach 60. Conservatives say the rule change also enhances the chances, for instance, of a conservative such as Justice Clarence Thomas being elevated to chief justice if William H. Renquist steps down after this session.

Although Republicans say the rule change would apply only to votes on judges, Richard Pious, a professor of political science at Barnard College, said there would be nothing to prevent this Congress or future ones from applying the precedent to non-judicial matters such as tax cuts or restructuring government programs. "Once you get the procedural method through, then if you have 50 votes and a vice president presiding, I think you can do it," he said.

Norman Ornstein, a scholar at the American Enterprise Institute, agreed. "There is absolutely no doubt in my mind if they do this, sooner rather than later . . . we will head down the slippery slope, probably first for executive nominations and then legislation," he said. "It erodes the Senate as an institution, but also clearly makes Congress less significant."

The Senate, unlike the House, which operates under written rules, is guided by tradition and precedent. The filibuster has evolved over time, and its use in judicial fights is a matter of great debate.

Supporters of the proposed rule change say it would restore the proper balance of powers between the executive and legislative branches. They contend the Democrats' repeated filibusters of appellate court nominees are imposing a new and unfair standard that requires 60 votes, rather than 51, for any appointee the minority party finds objectionable.

"Respect for the separation of powers has been tossed aside," Senate Majority Leader Bill Frist (R-Tenn.) said yesterday.

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