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A Last-Minute Deal on Judicial Nominees
Senators Agree On Votes for 3; 2 Could Still Face Filibusters

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two other contested nominees -- William G. Myers III of Idaho and Henry Saad of Michigan -- who will be filibustered or withdrawn, negotiators said.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.

Depending on how conservative groups digest the news over the next few days, one of the biggest losers in the deal could be Frist, who is weighing a presidential run in 2008. He has always insisted on up-or-down votes on judicial nominees. Amassing the support needed to win the vote on the nuclear option was considered a major test of his leadership skills and his adeptness at promoting social conservative causes.

Twelve of the 14 negotiators beamed as they took the stage at the news conference, clearly relieved and even proud that they had pulled off such a feat. "This agreement is meant in the finest traditions of the Senate it was entered into: trust, respect and mutual desire to see the institution of the Senate function in ways that protect the rights of the minority," McCain said.

The senators said they hope the agreement will serve as a wake-up call to the White House to consult more closely with the Senate on judiciary candidates, before fights erupt on the Senate floor.

"We're going to start talking about who would be a good judge and who wouldn't," said negotiator Lindsey O. Graham (R-S.C.). "And the White House is going to get more involved and they are going to listen to us more."

Other signers were Democrats Joseph I. Lieberman (Conn.), Mark Pryor (Ark.), Mary Landrieu (La.), Ken Salazar (Colo.) and Daniel K. Inouye (Hawaii), and Republicans Susan Collins (Maine), Olympia J. Snowe (Maine) and Lincoln D. Chafee (R.I.).

Many senators singled out Warner as particularly influential. Though he never showed his hand publicly, Democrats were confidant that he would vote with them against the nuclear option -- a major coup, because of Warner's stature and traditionally conservative voting record.

"I've said very little throughout this entire process," Warner told reporters. "And I'll say very little now, except that it's been a remarkable study of Senate history and the history of our country throughout this entire process."

Americans are divided along partisan lines over whether to eliminate the filibuster on judicial nominees, according to a new Washington Post-ABC News survey. Forty-three percent favor eliminating the filibuster rule on judges and 40 percent want to keep it. Two-thirds of all Republicans support the rule change and the same proportion of Democrats opposes it. The survey also found that only 47 percent of those surveyed said they are paying at least somewhat close attention to the debate, and 53 percent said they are paying little or no attention.

Efforts to avert a vote on the nuclear option started months ago and gained steam in recent weeks, as the timing of the vote firmed up. Frist and Reid tried to hash out a compromise, under terms similar to those in the final agreement, but backed off last week because the majority of both caucuses did not want to relent.

The group of 12 -- now 14 -- seemed a dubious lot at the outset, given the range of members, from Senate lions such as Warner and Byrd to newcomers such as Pryor and Salazar. Over the past two weeks, the group met formally almost daily and huddled in smaller groups and spoke to one another constantly by phone.

Lieberman said the negotiators began to realize a deal was coming together when they were handed a draft marked 4:27 p.m., and agreed to meet again after a Senate vote at about 5:30 p.m. "We all discussed it and agreed we were ready to go," he said.

Lieberman said one of the last changes, besides a typo, was the declaration that "in light of the spirit and continuing commitments made in this agreement," the senators would oppose any rules change in this two-year Congress that would force a vote on a judicial nomination by a new procedure. "We all wanted it to be positive," he said. "The other versions had stressed a negative, or were too conditional. . . . Interest groups on both sides won't be happy. But this is the kind of day we came to the Senate for."

Finally, yesterday, the clock caught up with them. "The impetus was when the vote was," Collins said. "It was now or never."

Reid, who called a news conference as soon as the negotiators ended theirs, was buoyant. "This is really good news," he said. "Tonight the Senate has worked its will on behalf of reason and responsibility."

For some liberal groups, including the Alliance for Justice, the deal went too far. Although the group said it "has no interest in seeing the Senate break down, we are very disappointed with the decision to move these extremist nominees one step closer to confirmation," said President Nan Aron.

Filibusters can be halted only with 60 or more votes. Frist and others say Democrats abused the right by repeatedly blocking confirmation votes for appellate court nominees who would be approved on simple-majority roll calls. Democrats noted that the Senate has approved 208 of Bush's federal court nominees and held up 10, and that Republicans have filibustered judicial nominees in the past. They contend that the delaying tactic is a legitimate tool to prevent the majority party from overreaching.

As negotiators described the talks, they made it clear leaders of both parties were bystanders. When Republicans presented the deal to Frist, Snowe told reporters, he asked "how it would be implemented and exercised." Snowe said she thinks the negotiators were doing Frist a favor but was not sure he would agree.

"When you're leaders, ultimately you're reconciled to certain positions," she said. "That's the way it is, and sometimes you can't transcend that boundary. That's where we were able to assist in that process, doing something that either one or both leaders could not do."

Staff writer Mike Allen contributed to this report.

© 2005 The Washington Post Company