Senate Leaders Prepare for Crucial Filibuster Vote

Republican leader Bill Frist, who is considering a run for president in 2008, has demanded an up-or-down vote on all court nominees.
Republican leader Bill Frist, who is considering a run for president in 2008, has demanded an up-or-down vote on all court nominees. (Photos By Melina Mara -- The Washington Post)
By Shailagh Murray and Charles Babington
Washington Post Staff Writers
Monday, May 23, 2005

A dozen Senate negotiators hope to avert a showdown today over judicial filibusters, but the chamber's Democratic and Republican leaders signaled yesterday that they are ready for a long-awaited vote that could deeply affect the federal judiciary and the operations of Congress.

Senators in both parties said tomorrow's scheduled vote on whether to ban filibusters of judicial nominees remains too close to predict because a handful of crucial GOP members have declined to divulge their intentions. Some of those Republicans exchanged phone calls over the weekend with a few Democrats seeking an agreement that would retain the right to filibuster but make its use highly unlikely this year or next -- provided that both sides act in good faith. The negotiators plan to huddle this afternoon in hopes of striking a deal that would deny Republican leaders the votes they need to ban the filibuster, and deny Democratic leaders the support they need to continue thwarting several of President Bush's appellate court nominees.

Because they drew lines deep into the sand months ago, Majority Leader Bill Frist (R-Tenn.) and Minority Leader Harry M. Reid (D-Nev.) have little to offer their colleagues, and even less room to maneuver, as they head into the biggest vote of their leadership careers. Warily eyeing the closed-door negotiations that could wrest the issue from their control, the leadership teams say they are ready for the debate's final hours.

For Frist and Reid, the filibuster debate presents special challenges. It involves no crop supports, high-tech tax credits or other perks they typically can bestow or withhold at crunch time to persuade vacillating colleagues. With a hallowed Senate tradition at stake, lawmakers are threatening to vote their consciences, making them poor candidates for logrolling.

As Sen. Charles E. Grassley (R-Iowa) points out, filibustering legislation is one thing -- the contents can be tweaked and moved around until enough senators are satisfied. In this case, the filibuster's target is a person nominated to the federal bench, and "you can't cut off a left arm and put on a new left arm," he said.

Barring a last-minute compromise, Democrats tomorrow will again try to block the confirmation of Priscilla R. Owen, one of the 10 appellate court nominees they thwarted in Bush's first term. If they succeed, Frist says he will seek a change in Senate precedents to bar the filibustering of judicial nominees. Vice President Cheney is ready to occupy the presiding officer's chair in case he is needed to break a 50-50 tie in Frist's favor.

It takes 60 votes in the 100-member Senate to overcome a filibuster. Republicans, holding 55 seats, have been unable to force confirmation votes for 10 of Bush's nominees, seven of whom were renominated this year.

Publicly, Frist and Reid have stuck to their partisan scripts. "As everyone knows, I have advocated fair up-or-down votes for judicial nominees again and again and again and will continue to do so," Frist said as he began the Senate debate Thursday. Reid, speaking next, responded, "The Senate is the last place where the president and Republicans can't have it all."

Privately, Frist and Reid are focused on more practical matters: monitoring arduous negotiations involving a dozen Republican and Democratic senators who want to avoid a vote; trying to keep their unruly caucuses unified; and -- barring a deal -- winning over the three Republicans believed by many to hold the rule-change outcome in their hands.

Outwardly, the two men have little in common. Frist, a patrician surgeon from Nashville, came to the Senate seeking only two terms, and is openly weighing a presidential bid in 2008. Reid, a miner's son from a tiny Nevada town and a former boxer and Capitol Police officer, has reached the pinnacle of his political hopes.

In the filibuster fight, their predicament is similar. Both men are determined to adhere to their principles, but are under considerable pressure from colleagues to find a solution that avoids a painful vote and possible chaos and political recrimination for months to come.

The two leaders have maintained a collegial relationship. Many Democratic senators and senior aides describe Reid as somewhat sympathetic to Frist, believing the Republican leader has backed himself into a corner by demanding confirmation votes for all nominees, and will face widespread backlash from conservative religious groups if he backs away. Reid, in turn, would catch heat from liberal groups if he compromised, but he has less to lose than Frist, who needs conservative support if he pursues the White House.

One of the big obstacles to deal-making is that there is not much political wiggle room. Frist has demanded an up-or-down vote on all court nominees, but Reid refuses to relinquish the right to filibuster because Democrats may want to use it against Bush's Supreme Court picks. An inability to reconcile the demands shut down bilateral talks between the two leaders a week ago, and the same problem confronts the 12 freelance negotiators.

All last week, the negotiators passed proposals back and forth in an attempt to find middle ground. But the two leaders weighed in between meetings to remind the negotiators of the bottom line. On a conference call after a Thursday afternoon meeting, as rumors swirled that a deal was near, Reid repeated his mantra, "No nuclear option." He called a second meeting Thursday of all his Democratic troops, where negotiators reported to their colleagues that Republicans could not take the nuclear option off the table, because Frist would not let them.

Frist, for his part, talks to his GOP colleagues in every forum possible -- on the phone, on the floor, in small meetings, one-on-one in his office. Eric Ueland, his chief of staff, said the leader "has not made this a test of party loyalty," nor has he offered legislative or campaign favors to keep wavering Republicans in line. "There are times and places where those tools might be appropriate," Ueland said. "But on an issue that so directly goes to the core responsibilities of the United States Senate, none of those tools are appropriately applicable."

Every morning last week, Reid stopped by Frist's office or at least called the GOP leader, just to check in. Aides say the Nevada Democrat deals regularly with two other Republicans: Whip Mitch McConnell (Ky.) and Sen. John McCain (Ariz.), the chief Republican negotiator in the compromise talks.

Reid also has named key Democrats as emissaries to the three Republicans that both sides consider the swing voters. Sen. Patrick J. Leahy (Vt.), the ranking Democrat on the Judiciary Committee, is working on Sen. Arlen Specter (R-Pa.), chairman of the panel and a co-sponsor with Leahy of a complicated asbestos bill working its way through the Senate. Sen. Carl M. Levin (D-Mich.) is assigned to Sen. John W. Warner (R-Va.), and Sen. Joseph I. Lieberman (D-Conn.) has been teamed with Sen. Susan Collins (R-Maine). Warner chairs the Armed Services Committee, and Collins chairs the Homeland Security and Government Affairs Committee; Levin and Lieberman are the ranking Democrats on those panels.

Democrats have fretted that, despite Specter's and Warner's seniority, Republicans could threaten them with the loss of their chairmanships if they abandon Frist on the rule-change vote. Just in case, Reid's office has consulted with the Senate parliamentarian, aides said, and determined that the act of removing the senators from their posts would be subject to a Democratic filibuster. Warner, Collins and Specter said they have not been threatened, and Ueland said of the idea, "Not only has it not happened, it's a completely silly idea hatched by the same conspiracists" who believe in UFOs.

Beyond their regular appearances on the Senate floor, the two leaders have relied on their colleagues and outside groups to stir up drama. That is a tall order when the subject is an arcane constitutional question, and with little room for creativity, the events at times seemed weirdly synchronized.

For instance, Wednesday's theme was women. Several female Democratic House members accompanied Sens. Patty Murray (D-Wash.) and Barbara Boxer (D-Calif.) in a march to the Senate floor to protest the nominations of Owen and Janice Rogers Brown. They sat on a staff bench at the back of the chamber and chatted for a few minutes, then left. Later, female Republicans held their own news conference, with Rep. Ginny Brown-Waite (R-Fla.) saying: "Mr. Reid, tear down that glass ceiling for these very highly qualified women!"

On Thursday, Reid met with Congressional Black Caucus members who endorsed the filibusters even though one of the targets -- Brown of California -- is black. "The filibuster was systematically used when Senate minority rights meant the denial of the rights of African Americans," Del. Eleanor Holmes Norton (D-D.C.) told reporters. Hours later, Frist joined black ministers who support the proposed rule change. "Why are they afraid to put a black woman on the court?" asked Bishop Harry Jackson of Hope Christian Church in Lanham.

Whether a showdown will come rests with the dozen negotiators -- six from each party -- struggling for a compromise. And no one seems certain how it will play out.

If no compromise is reached, "I believe we'll have the votes" to ban judicial filibusters, McConnell told CBS's "Face the Nation" yesterday.

Others were less certain. "I don't know" if Frist can muster the 51 needed votes, said McCain, a key negotiator who opposes the rule change. He told "Fox News Sunday" that several senators have not signaled "exactly how they're going to vote," and that a bipartisan deal remains "entirely possible." But he warned that tonight will mark the "last opportunity."

© 2005 The Washington Post Company