By Shailagh Murray and Dana Milbank
Washington Post Staff Writers
Saturday, May 14, 2005
Senate Majority Leader Bill Frist (R-Tenn.) served notice yesterday that he will move next week to bring President Bush's judicial nominees to the full Senate for an up-or-down vote as lawmakers closed in on a last-minute compromise to end the conflict over judges.
An aide to Frist said Senate Republicans would bring the fight over judges to the Senate floor on Wednesday and have a showdown vote between Friday and May 25 on one of two women Bush has nominated to appellate courts, Priscilla R. Owen and Janice Rogers Brown. Republicans have said they plan to abolish the filibusters that Democrats have used to block confirmation of several judges, inviting retaliation from a minority party that has threatened to disrupt Senate proceedings for months. The proposed change in Senate rules has been called the "nuclear option" by members of both parties.
Despite the brinkmanship, Frist and Senate Democratic leader Harry M. Reid of Nevada are considering different ways to resolve the fate of all seven of the current nominees who had previously been blocked by filibuster. One potential agreement would guarantee that two of the nominees would be confirmed and the other five would be granted votes with no assurance of the outcome. The handling of the other five nominees remains the main sticking point between the GOP and Democratic leaders.
Democrats are insisting that in exchange for clearing the way for two of the judges to be confirmed, Frist would have to promise not to seek to change the filibuster rule on judicial nominees through 2006. Under the negotiations, Republicans could choose which two nominees would be cleared.
In a related negotiation, both leaders are monitoring an effort led by two moderate senators, Ben Nelson (D-Neb.) and John McCain (R-Ariz.), to amass five other Democrats and five other Republicans who would assure that the two nominees are approved. Nelson, McCain and the 10 other senators are participating in ongoing talks, people on both sides of the negotiations said.
Though nothing is fixed, negotiators believe they may have the seed of a real solution that allows Frist to bring all the nominees to floor, while leaving the filibuster rule intact -- a crucial demand of the Democrats, who want the option of using the filibuster on future Supreme Court nominees. Democrats are increasingly optimistic that they may be able to attract enough Republican support to kill the rule-change effort outright.
The two leaders have set a tentative deadline of the end of the day Monday to conclude their negotiations. Frist and Reid have a previously arranged dinner date Sunday at Frist's home.
People familiar with the talks cautioned that nothing is fixed. "It's not soup yet," said one senior Senate aide. But there is a growing belief on both sides that if a credible alternative with a guaranteed outcome is presented, it would change the dynamic of the debate, by exposing a substantial bloc of bipartisan support for a compromise. Although the most vociferous Democratic and Republican factions appear to be itching for a showdown, many rank-and-file senators are loath to tamper with Senate rules and are weary of the judicial battle, a massive distraction that threatens to grind business to a halt for months to come.
The backroom negotiations were accompanied yesterday by sharp partisan exchanges in public. "It is time for 100 Senators to decide the issue of fair up-or-down votes for judicial nominees after over two years of unprecedented obstructionism," Frist said in a statement. Reid issued a statement accusing Frist of an "abuse of power" and predicted that "Democrats and responsible Republicans will vote to preserve the checks and balances that the founders of our country so wisely established."
If a compromise is not reached, Frist will try to impose the "nuclear option," reducing the threshold for confirmation to 50 votes from 60. The majority, in that vote, would seek to outlaw the minority's ability to filibuster Supreme Court and circuit court nominees, by establishing a precedent under which such nominees would receive an up-or-down vote after a debate of as many as 100 hours. Democrats have said they will retaliate by using parliamentary tactics to thwart Republican priorities.
Both sides claim that history and precedent support their position, but it is clear that the action proposed by Frist would bring the Senate into uncharted territory. The chamber operates on the basis of "unanimous consent," meaning that an objection from even a single senator can disrupt the Senate's activities. And Democrats have said that they would retaliate against the anti-filibuster rule change by revoking their consent for routine activities -- a move that analysts said could bring the chamber to a standstill.
Personnel appointments would be particularly vulnerable to delay tactics, and the first casualty could be Bush's pick to be United Nations ambassador, John R. Bolton. Frist plans to bring Bolton's nomination to the Senate floor after the rule change but before the Memorial Day recess.
The Frist aide, who briefed reporters on the condition that he not be identified, said the majority leader would keep the Senate in session "until the ambassador's nomination is resolved." The aide said the judge dispute and the Bolton fight "will all be resolved before Memorial Day."
The Republicans left their options open about which candidate -- Owen or Brown -- would come to a vote first. The precise mechanism for the confrontation is complex: first, a "test vote" to demonstrate there is majority support for the nominee but not the 60 needed to break a filibuster; second, a vote on a non-debatable motion to table the objections Democrats would raise to a ruling by the presiding officer -- Vice President Cheney -- that a simple majority vote is sufficient for confirmation; and, if the first two hurdles are cleared, a vote on the nominee herself.
Frist's aide said the rules change would not block filibusters of lower-court nominees because those have never been attempted. But the change would also cover prospective Supreme Court nominees.
Several Republicans criticized Reid yesterday for his comments Thursday regarding Henry Saad of Michigan, nominated by Bush to the U.S. Court of Appeals for the 6th Circuit. In a Senate floor speech, Reid said Saad "would have been filibustered" if Frist had brought the nomination to the full Senate. "All you need to do is have a member go upstairs and look at his confidential report from the FBI, and I think we would all agree that there is a problem there," Reid said.
Sen. George Allen (R-Va.) told reporters yesterday that Reid "is hitting below the belt to make such an assertion and innuendo that there is something criminally wrong with an individual nominee. It is lacking in civility and fairness." Reid spokesman Jim Manley said: "The fact that there are questions about this nominee's suitability to be a federal judge has been discussed in public for over a year. Senator Reid simply referred his colleagues to the source of those questions. That is Senator Reid's right and responsibility."