A Last-Minute Deal on Judicial Nominees

By Charles Babington and Shailagh Murray
Washington Post Staff Writers
Tuesday, May 24, 2005

Fourteen Republican and Democratic senators broke with their party leaders last night to avert a showdown vote over judicial nominees, agreeing to votes on some of President Bush's nominees while preserving the right to filibuster others in "extraordinary circumstances."

The dramatic announcement caught Senate leaders by surprise and came on the eve of a scheduled vote to ban filibusters of judicial nominees, the "nuclear option" that has dominated Senate discussions for weeks. The deal clears the way for prompt confirmation of three appellate court nominees -- Priscilla R. Owen, Janice Rogers Brown and William H. Pryor Jr.

Democratic leader Harry M. Reid (Nev.) called the pact "a significant victory for our country." But Majority Leader Bill Frist (R-Tenn.) said "it has some good news, and it has some disappointing news."

Frist, who was under pressure from conservative groups and colleagues to ban judicial filibusters, said that each of Bush's judicial nominees deserves an up-or-down vote on the Senate floor and that the agreement "falls short of that principle." But he and Reid had no choice but to accept the agreement's outline.

The bipartisan negotiators, who signed a two-page "memorandum of understanding," have the votes both to prevent judicial filibusters without banning them and to defeat efforts to invoke the nuclear option, regardless of the views of their Democratic and GOP colleagues, the White House and outside groups on the left and right. The action represents an unusual attempt to wrest power from the leadership.

The negotiators largely credited Sens. John McCain (R-Ariz.) and Ben Nelson (D-Neb.), and said they received significant support from veteran senators John W. Warner (R-Va.) and Robert C. Byrd (D-W.Va.). Their agreement calls for Democrats to drop filibusters of three appellate court nominees they have long opposed: Owen, of Texas; Brown, of California; and Pryor, of Alabama. It does not protect two other contested nominees -- William G. Myers III of Idaho and Henry Saad of Michigan -- who will be filibustered or withdrawn, negotiators said.

On the more difficult issue of future judicial fights, the memo's signers vowed to filibuster nominees only "under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist." The paragraph retaining the right to filibuster -- considered the pact's most difficult question -- states: "In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress," which extends through 2006.

Several Democrats quickly declared victory, saying the language left Republicans no room to ban judicial filibusters. "The nuclear option is off the table," Democratic Whip Richard J. Durbin (Ill.) said on the Senate floor, moments after the negotiators announced their deal at a crowded news conference.

In a sharp comment aimed at the White House, Reid said: "Abuse of power will not be tolerated, and attempts to trample the Constitution and grab absolute control are over. We are a separate and equal branch of government. That is our Founding Fathers' vision, and one we hold dear."

But Republicans said they are free to back a ban if they believe Democrats act in bad faith and filibuster a nominee whose credentials do not amount to an "extraordinary" circumstance. "We don't think we're going to get there," said Sen. Mike DeWine (R-Ohio), adding that he will not hesitate to vote to ban judicial filibusters if he concludes the Democrats are abusing the right.

At one point last week, negotiators considered language saying Republicans would not trigger the nuclear option, "provided that there is good faith compliance with the commitments set forth in" the "extraordinary circumstances" provision on the future use of the filibuster.

Leaders of both parties said the pact's greatest implications will surface when Bush fills a Supreme Court vacancy, which many expect this summer. Democrats, who hold 44 of the Senate's 100 seats, were eager to retain filibuster powers in hopes of dissuading Bush from nominating a staunch conservative.

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