By William Branigin
Washington Post Staff Writer
Friday, May 20, 2005 4:32 PM
The Senate's Republican majority today began a countdown to a vote that has been dubbed the "nuclear option," a decision on whether to end the ability of the chamber's minority to use filibusters to block the appointment of federal judges.
After a third day of debate on one of President Bush's most controversial judicial nominees, Sen. John Cornyn (R-Tex.) filed a cloture motion to end the debate and put the nomination to a vote. The cloture vote, scheduled for Tuesday, would trigger a series of steps leading to the "nuclear option" -- unless a bipartisan group of moderate senators succeeds in negotiating a compromise to head it off.
The cloture motion was filed by Cornyn on behalf of Senate Majority Leader Bill Frist (R-Tenn.), who was traveling today. With strong backing from the White House, Frist wants to ensure that Bush's nominees to the federal bench get "a fair up-or-down vote" on the Senate floor, with a simple majority of the 100 senators deciding the matter, instead of allowing Democrats to block nominees through filibusters, which require 60 votes to break. Republicans say filibuster threats mean that, for practical purposes, a "supermajority" of 60 votes is required to confirm the nominees, rather than the traditional 51 votes.
After submitting the cloture motion, which was signed by 18 senators, Cornyn said there would be a fourth day of debate Monday on the nomination of Texas Supreme Court Justice Priscilla R. Owen to the U.S. Court of Appeals for the 5th Circuit in New Orleans.
Cornyn rejected the idea that proceeding with a de facto rule change to end filibusters against judicial nominees would lead to a "constitutional crisis." He added, "This is a controversy, a disagreement, not a crisis." Once the matter is resolved by a majority vote, he said, "we should get back to work."
But Democrats have vowed to use other Senate rules, such as the need for unanimous consent to hold committee hearings, to tie up the chamber and prevent other business from going ahead.
In a floor speech preceding the cloture motion, Cornyn was critical of the bipartisan group of more than a dozen senators who have been trying to craft a compromise that would ensure votes on most of the contested nominees in return for preservation of the filibuster for use in "extraordinary circumstances."
The Texas senator said a resolution of the dispute should not be based on "some bogus suggestion, some deal cut by a handful of senators," that would "throw some nominees overboard" while leaving the main issue unresolved: the potential use of the filibuster to block a future Supreme Court nominee.
"Now is the time to resolve this issue once and for all," Cornyn said.
The cloture motion followed more than 25 hours of debate during the past three days, much of that discourse devoted more to the looming "nuclear option" than to the qualifications of Owen. Elevated to the Texas Supreme Court in 1994, she was nominated by Bush to a seat on the 5th Circuit appeals court in 2001, but was blocked by Democrats through filibuster threats. Democratic opponents asserted that she is too extreme and "out of the mainstream" in her conservatism to warrant a lifetime judicial appointment, charges that Republicans reject.
Owen was one of 10 Bush judicial nominees who were blocked through filibuster threats during his first term. Three subsequently retired or withdrew, and Bush resubmitted the nominations of the seven others. Of those, Democrats continue to oppose five, including Owen.
Throughout the past three days of debate, Democratic senators pointed repeatedly to the Senate's approval of 208 of Bush's judicial nominees. Instead of being satisfied with a 95 percent success rate, the highest for a president's judicial nominees in the past two decades, Bush has shown that he wants to have everything his way, the Democrats charged. By comparison, Republicans blocked 69 of President Clinton's judicial nominees during his two terms, Democratic senators pointed out.
For Republicans, the key issue is that the 10 blocked nominees enjoyed "majority support" in the Senate, but were blocked through what the GOP calls an unprecedented pattern of filibustering that, in effect, has set a higher threshold for confirmation. With 55 Senate seats, the Republicans can easily approve Bush's nominees by a simple majority, but lack the party-line votes to break a filibuster.
As described by Senate sources, the nuclear option would be triggered if, as currently expected in the absence of a compromise, the Republicans fall short of the 60 votes they need to end debate on Owen on Tuesday. At that point, Frist would rise to make a point of order that debate on a judicial nominee should be limited and call for an end to the Democratic delays.
Vice President Cheney, as the presiding officer of the Senate, would rule in Frist's favor, prompting Democrats to appeal. Frist would then move to table the appeal, and the Senate would vote on that motion, which is not subject to debate. If the motion passed by a simple majority, the Senate would then vote at a specified time on the nomination of Owen, with a simple majority required to confirm her. If the motion failed, the nomination would not come to a vote.
Thus, the vote on the motion would set a new precedent for ending filibusters, effectively circumventing the Senate requirement of a two-thirds vote -- 67 senators -- to change the body's rules. This de facto rule change would be the "nuclear option" so dreaded by Democrats and some Republicans.
In today's debate, Democratic senators said they placed no stock in Frist's promise that the use of filibusters would be denied only for judicial nominees. They raised the prospect that filibusters would also be effectively abolished for executive nominees and legislation, fundamentally changing the character of the Senate as a body in which minority rights are protected and lawmakers are forced to compromise.
If Frist's effort succeeds, "any future Senate could use the nuclear option to change Senate rules," said Sen. Carl Levin (D-Mich.). "The character of the Senate would be destroyed as a uniquely deliberative body."
Levin warned that "this nuclear option . . . will cause a permanent tear in the Senate fabric" and "produce a deeply embittered and divided Senate."
"Do not take this fateful, unprecedented and misguided step that is being proposed," Levin told fellow senators. "I urge my colleagues to reject the reckless course of the nuclear option."
Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee and one of the GOP senators involved in negotiations with Democrats, said the chamber today "has the feel of a Hollywood stage set," with a relentless countdown to a nuclear blast. But no movie hero will emerge to save the day, he said. Instead, "it is up to us to save the Senate."
Specter repeated his call for a compromise in which Frist and Senate minority leader Harry M. Reid (D-Nev.) would "liberate their caucuses to vote without party straightjackets." Without party-line votes, Specter said, he was convinced that "most Democrats would reject obstructive tactics" of using filibusters to block nominees, and "most Republicans would reject the nuclear option to change the Senate rules."
Noting that the "systematic filibusters" by Democrats were initiated as "payback" for the blockage of Clinton's nominees, Specter said the first step in resolving the dispute is for Republicans and Democrats "to concede publicly that both parties are at fault."
Specter said, "The option of a filibuster for really extraordinary circumstances ought to be retained, but not for a pattern of getting even." He said he hoped the nuclear option vote could be avoided, because "either way the vote comes out, it will be harmful to the Senate."
If the motion fails, he said, "it will embolden the minority party to recklessly misuse the filibuster," possibly to scuttle such nominations as that of John R. Bolton as U.S. ambassador to the United Nations. If it passes, "it will embolden the appointers to having greater latitude in the nominees that will be submitted," Specter said.
Referring to the U.S.-Soviet nuclear standoff during the Cold War, the senator said, "If the United States and the Soviet Union could avoid nuclear confrontation . . . so should the United States Senate."