Gloves Off As Senators Start Debate On Judges

Senator Frist With Judicial Nominees
Senate Majority Leader Bill Frist answers questions during a press conference with nominees Justice Janice Rogers Brown, center, and Justice Priscilla Owen, right, concerning votes on judicial nominations. (Melina Mara - The Washington Post)
By Shailagh Murray and Charles Babington
Washington Post Staff Writers
Thursday, May 19, 2005

The Senate opened a long-awaited debate on whether to ban filibusters of judicial nominees with vividly partisan attacks yesterday, as a small group of moderates worked behind the scenes for a compromise to avert the showdown.

Senators from both parties filled the chamber all day with impassioned speeches about their constitutional duty to give the president "advice and consent" on judicial nominees. Majority Leader Bill Frist (R-Tenn.) set the tone with an opening speech that said Democrats want to "kill, to defeat, to assassinate these nominees." Democrats denounced his remarks.

Even more intense action took place in small groups and closed meetings, as half a dozen GOP centrists, and an equal number of Democrats, tried to close a deal that would defuse the controversy. Aides familiar with the negotiations said they focused on two issues: the fate of seven pending appellate court nominees who were blocked from an up-or-down vote in Bush's first term and the more difficult issue of agreeing on how Democrats would treat the right to filibuster judicial nominees in coming months, when a Supreme Court vacancy might occur.

The "six and six" proposal, as it is called, would obligate Democratic signatories to forswear backing a filibuster against future judicial nominees except in extraordinary circumstances. In return, the six GOP signers would agree to vote against efforts to ban judicial filibusters, the aides said.

Such an arrangement would effectively end the crisis because Democrats would not have the votes they need to prevent votes on the nominees in question. At the same time, Frist would not have the 51 votes he needs to disallow filibusters of judicial nominations.

It was unclear how the proposed accord would handle the seven pending Bush nominees. Under one scenario, all would receive confirmation votes -- and presumably be seated on various appeals courts -- except Henry W. Saad of Michigan and William G. Myers III of Idaho. Sources said Saad had made too many Democratic enemies, in part by accidentally sending a senator an e-mail that criticized the lawmaker. Myers, aides said, is a lower priority to Republican conservatives determined to secure confirmations for Priscilla Richman Owen of Texas, Janice Rogers Brown of California and William H. Pryor Jr. of Alabama.

Senators participating in the negotiations included Democrats Joseph I. Lieberman (Conn.), Ben Nelson (Neb.), Mark Pryor (Ark.), Robert C. Byrd (W.Va.), Mary Landrieu (La.) and Ken Salazar (Colo.). Republican negotiators included Olympia J. Snowe (Maine), John McCain (Ariz.), Mike DeWine (Ohio), John W. Warner (Va.), Lindsey O. Graham (S.C.) and Lisa Murkowski (Alaska). Warner hosted at least one meeting. "It's 200 years of tradition and precedent -- there are a lot of issues to consider," Snowe told reporters.

The White House is taking the position that it wants no compromise and is insisting on an up-or-down vote on each of its nominees.

Activist groups on the left and right have grown increasingly intent on helping to shape the judiciary in recent years, as rulings on abortion, school prayer and other topics have stirred controversy. Stakes are especially high this year, senators say, as many expect the first Supreme Court vacancy in more than a decade.

The filibuster rarely figured in judicial fights until Bush's first term, when Democrats used it to keep 10 appellate court nominees from having confirmation votes. Under a filibuster, a determined minority can keep a measure or a nomination from being approved if it can muster 41 votes against. The Republicans want to eliminate the filibuster for judicial nominees, making it possible to approve judges with 51 votes -- an approach known as the "nuclear option" because of the potential impact on Senate comity.

On the Senate floor yesterday, GOP leaders charged that Democrats have abused the filibuster by using it on several judicial nominations, which they said was not a part of Senate tradition. Democrats responded by saying the filibuster is a hallowed tool that protects minority rights.

"I do not rise for party. I rise for principle," Frist said moments after calling up Owen's nomination to the U.S. Court of Appeals for the 5th Circuit. When he spoke of killing nominees, however, Democratic Whip Richard J. Durbin (Ill.) hurried to the floor and admonished Frist to "choose words carefully." He cited the appearance yesterday morning before the Senate Judiciary Committee of U.S. District Judge Joan H. Lefkow, whose husband and mother were recently slain.

Some Republicans are trying to convince Democrats that, even if every pending judge were given an up-or-down vote, it is not a foregone conclusion all seven would be confirmed. "Some of them wouldn't make it," Graham said. If all Democrats and independent James Jeffords (Vt.) vote against a nominee, six Republicans would have to join them -- or 11 Republicans would have to be absent -- for the nomination to fail in the Senate, where Republicans hold 55 seats.

Other Republican senators simply want to vote on changing the rules on filibustering judicial nominations, because win or lose, the matter would be put to rest. "We need to clear it up," Sen. Orrin Hatch (R-Utah) said. Hatch, along with other conservative GOP senators, does not want to compromise if it means choosing which nominees would be approved and which would be rejected. "I think there will be an uproar on our side if we throw anybody overboard," Hatch said.

In a floor speech, Judiciary Chairman Arlen Specter (R-Pa.) traced the politicization of the confirmation process to 1987, when Democrats took over the Senate and the confirmation rate for Circuit Court nominees fell to 65 percent, from 89 percent earlier in the Reagan administration. President George H.W. Bush's lower-court nominees took an average of 100 days to confirm, twice the average duration in the Carter administration.

But when Republicans took control of the Senate during the Clinton presidency, "we exacerbated the pattern of delay and blocking nominations," Specter said, by pushing the average duration to 192 days for district court nominees and 262 days for circuit court nominees. Seventy of Clinton's nominees were blocked through holds or other procedural maneuvers. Then Democrats filibustered 10 of Bush's nominees, seven of whom have been renominated.

"Against this background of bitter and angry recriminations, with each party serially trumpeting the other party to get even or really to dominate, the Senate now faces dual threats" -- the filibuster and the nuclear option, Specter said. It is a confrontation of "mutually assured destruction," he added.

Staff writers Dan Balz and Spencer S. Hsu contributed to this report.

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