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Bipartisan Group Seeks Own Course On Nominees

By Dan Balz
Washington Post Staff Writer
Friday, May 20, 2005

At times they have appeared agonizingly close to a deal. At other times their cause has seemed hopeless. But what is most remarkable about the dozen or so senators working to avert a historic showdown over President Bush's judicial nominees is their potential to control the Senate's destiny without the explicit blessing of their leadership or their party's most important constituencies.

In an era of polarized politics, in which party and congressional leaders have been increasingly responsive to their most ideologically driven activists, the bipartisan band of senators has attempted to steer a different course. Behind closed doors, they have tested whether it is possible to find language to codify the principles of trust and goodwill at a time when little of either is left in the political system.

The senators involved have found it difficult to overcome deep-seated differences and suspicions that now govern the relationship between Republicans and Democrats. But they have acted with the knowledge that, if they strike a compromise, they alone have the power to control events from here forward in the battle over judicial nominees and the change in Senate rules that has come to be known as the "nuclear option." That, in the estimation of congressional analysts, has made their efforts almost without precedent in the legislative branch.

"Especially in the House but even in the Senate, we've come to a situation where most activity of a legislative nature is done by party leadership," said David Rohde, a professor of political science at Michigan State University. "This is a case where a set of middle-of-the-road senators with interests independent of the leadership can find, potentially, a resolution that they can enforce and there's not much the leadership can do about it, except retaliate against them," he added.

The participants are an eclectic group -- moderates, centrists, mavericks and institutionalists -- who have come together in the hope of preserving a working center in the Senate at a time when the political forces keep pulling politicians away from it. In a battle with enormous political stakes and with significant implications for upcoming battles over expected Supreme Court vacancies, they are torn between party loyalty and a desire to protect the institution of the Senate.

The Republicans include John McCain (Ariz.), who has frequently challenged his own leaders and worked across party lines; John W. Warner (Va.), the Armed Services Committee chairman, who is reluctant to change the rules; Mike DeWine (Ohio), a member of the Judiciary Committee and one of the most active negotiators; and Lindsey O. Graham (S.C.), who has been in the thick of the fight over Social Security and now has jumped into the judicial negotiations.

Also involved are the senators from Maine, Olympia J. Snowe and Susan Collins, who are among the chamber's leading Republican moderates, and Lisa Murkowski (Alaska). Judiciary Committee Chairman Arlen Specter (Pa.), who has not said how he will vote on the rule change, participated yesterday.

Included in the Democratic group are some of the newest and oldest members of the Senate. Ben Nelson (Neb.), who has been at the forefront of finding a compromise, has always been one of the first in his party to seek compromise with Republicans. Joseph I. Lieberman (Conn.) is a veteran legislator and leading Democratic centrist, although he has been reluctant to go as far as Republicans have asked in negotiations.

Ken Salazar (Colo.) is finishing his fifth month in the chamber, and Mark Pryor (Ark.) is in his third year. Then there is Robert C. Byrd (W.Va.), who was first elected in 1958, five years before Pryor was born; Byrd is a former Senate Democratic leader and the chamber's most vocal defender of its traditions. Mary Landrieu (La.) is also part of the Democratic group, and Kent Conrad (N.D.) got active yesterday.

All week, these senators have shuttled from one office to another seeking compromise as the Senate has begun the countdown to the moment when Majority Leader Bill Frist (R-Tenn.) seeks to change rules to allow a simple majority to shut off a judicial filibuster, rather than the 60 votes now required.

Behind closed doors, they have carved up the future of a number of Bush's judicial nominees, deciding among themselves who should be confirmed and who should not. The two sides have traded pieces of paper and argued over words and phrases. They have consulted the Constitution itself and yesterday even asked for a dictionary as the hair-splitting over language continued.

But they have stumbled over the balance between preserving, under extraordinary circumstances, the Democrats' right to filibuster judicial nominees and precluding the rule change in this Congress -- as Senate Minority Leader Harry M. Reid (D-Nev.) has demanded -- or leaving a crack in the door for GOP negotiators to support the nuclear option should the deal fall apart, as Republicans have asked.

The argument is not insignificant. Democrats believe that asking Republicans to rule out the nuclear option while preserving their own right to filibuster is justified because the filibuster is part of Senate rules and that option means changing the rules. Republicans believe that makes the deal unbalanced in the Democrats' favor. The negotiators have tweaked and tinkered with words, but trust, rather than language, is at the heart of the impasse.

Simple arithmetic gives the group potentially great power. If six Republicans and six Democrats reach agreement and stick to it, they can shut down any filibuster lodged by Democrats against a judicial nominee and block any effort by Frist to change the rules. They also can determine the fate of the nominees already on the Senate docket and can provide the balance of power in any fights over Supreme Court vacancies.

In doing so, however, they would risk the wrath of the interest groups in both parties that are in the thick of the fight over judges. Tony Perkins, president of the Family Research Council, said any compromise that does not guarantee an up-or-down vote for every Bush nominee is unacceptable. "Those Republican senators who would undermine the leadership of Senator Frist would run a political risk in doing so," he said.

Frist and Reid failed to strike a deal in part because of the power of the constituency groups. Democrats have complained that Frist has put himself in hock to religious and social conservatives because of his presidential aspirations, but Reid is under pressure from the left to avoid a deal that lets through any of Bush's controversial nominees.

"The interest groups are cracking the whip on this," said Ross K. Baker, a professor of political science at Rutgers University.

In that charged environment, the negotiators labored on yesterday, with the countdown clock continuing to tick in the background.

© 2005 The Washington Post Company