By Dan Balz and Shailagh Murray
Washington Post Staff Writers
Wednesday, May 18, 2005

With the Senate poised to open debate on President Bush's appellate court nominees, a bipartisan group of senators carried on furious negotiations yesterday aimed at heading off a constitutional showdown that threatens to poison relations between the two parties and disrupt normal business in Congress.

Settlement talks remained fluid through much of the day as Republican senators initially balked at both the broad outlines and the crucial details of a compromise offered Monday by Democratic negotiators. Republicans claimed that the Democrats were asking them to give up too much in the deal, according to sources in both camps. But negotiations continued, with more set for today.

Meanwhile, the long-simmering battle is scheduled to go to the Senate floor this morning, although it may not be until next Tuesday or Wednesday that the Republicans move to invoke what has become known as the "nuclear option," a phrase used to describe its potentially disruptive effect on the Senate. That will happen if Senate Majority Leader Bill Frist (R-Tenn.) seeks to change the rules to allow senators to shut off debate on judicial nominees with a simple majority, rather than with the 60 votes now required to halt a filibuster.

As the two sides continued their discussions, two nominees at the center of the storm, Janice Rogers Brown of California and Priscilla Richman Owen of Texas, held a series of high-profile meetings at both ends of Pennsylvania Avenue, talking with Bush at the White House and attending a photo opportunity with Frist and other Republican leaders in the Senate.

Absent a deal, one of them will be the vehicle for what promises to be a historic clash between the parties. Bush has nominated Brown to a seat on the U.S. Court of Appeals for the District of Columbia Circuit and Owen to a seat on the U.S. Court of Appeals for the 5th Circuit. Democrats have vowed to filibuster both, as they did during Bush's first term.

At issue is the extent to which Bush and the Republican majority in the Senate can reshape the federal judiciary and, most important, the Supreme Court, if vacancies occur there. The nuclear option is widely seen as the first and perhaps most important test of where the balance of power will lie for the anticipated battles over future Supreme Court nominees.

Senate Republicans enjoy a 55 to 44 majority over the Democrats, with one independent generally voting with the Democrats. That means Frist can afford to lose no more than five of his GOP colleagues in any showdown over a rule change, with Vice President Cheney the insurance policy for breaking a tie.

Three Republicans have stated that they will oppose the change: Sens. John McCain (Ariz.), Lincoln D. Chafee (R.I.) and Olympia J. Snowe (Maine). Democrats, led by Minority Leader Harry M. Reid (Nev.), have expressed confidence this week that they will be able to attract three other GOP senators, with most of the focus on Sens. John W. Warner (Va.), Susan Collins (Maine) and Arlen Specter (Pa.).

"I'm not making any comment at this time today and maybe later," Warner said after the weekly lunch of Republican senators. "At this time, I think I can pursue my goals more effectively by being quiet."

Warner, who is among the Republicans involved in seeking a compromise, was asked about reports that he had told Reid that, if it came to a vote on the filibuster rule change, he would join the Democrats. "I did not make that statement," he said. "I have consistently said at this point in time that I have not declared. . . . You asked me about a quote, and I have no hesitation of saying no."

Reid sounded more optimistic than in the past, speaking at lunch yesterday. "We've trained hard," he said. "The fight is about to begin. We are certainly not despondent."

Despite the Democratic optimism, Republicans predicted that, if compromise negotiations fail, Frist will be able to hold enough of his caucus to prevail in the critical floor vote. According to a Democratic source, Specter reported at a meeting of the bipartisan centrist caucus that Republicans are under great pressure to follow their leaders.

Senators reported yesterday that more than enough of their colleagues are interested in a deal to make it stick. The problem is in finding language that both sides could buy into. One significant sticking point involves the Democrats' proposal that the Republicans agree to give up the idea of making the rule change at any point in the 109th Congress. In return, Democrats said they would agree not to filibuster Bush's nominees except in extraordinary circumstances.

Republicans argued that this would allow any of the Democratic signatories to break the deal. They also argued that they should have the option of using the nuclear option in extraordinary circumstances. The two sides moved toward a compromise on this issue late in the day but remained short of an agreement.

The other sticking point involves which of Bush's nominees would be marked for approval and which would be blocked. Both sides appeared willing to accept a deal that would block the nomination of Henry W. Saad to a seat on the U.S. Court of Appeals for the 6th Circuit.

Democrats proposed that they be allowed to block two other nominees from a group of four -- Owen; Brown; William G. Myers III, nominated to the U.S. Court of Appeals for the 9th Circuit; and William H. Pryor Jr., nominated to the U.S. Court of Appeals for the 11th Circuit.

Republicans, who want to ensure the confirmation of Owen, Brown and Pryor, initially countered by saying that they would approve blocking only one more other than Saad. They argued that the Democrats had already successfully blocked, in Bush's first term, three other appellate court nominees who have not been renominated, and that they now should not be able to block three more. Both the number and the identities of the judges who might be blocked were negotiated throughout the day.

The deal would also clear some other, less controversial Bush nominees for approval.

"It's a very dynamic situation," Sen. Joseph I. Lieberman (D-Conn.) said as the talks continued. "There are clearly, in my opinion, more than six on either side open to, interested in and pursuing a compromise agreement that would avoid the nuclear option. But there has not been a literal meeting of the minds."

Outside groups on both sides remained opposed to any compromise.

Debate will open today with Republicans making the case that both Owen and Brown are fully qualified for the appellate courts and with Democrats countering that both are out of the judicial mainstream. At some point, Frist will put forward one of the two for confirmation.

The Republicans plan one cloture vote, with the ostensible purpose of trying to shut off debate but the real intention of demonstrating that the nominee has majority support. Sometime after that, Frist is expected to seek a point of order designed to call the debate to a halt, with the presiding officer, probably Cheney, ruling in Frist's favor. Democrats would then appeal the ruling, and Republicans would counter with a motion to table the appeal. Whoever has a majority will prevail.

Staff writer Spencer S. Hsu contributed to this report.