Senate Set To Vote on Delayed Nominee

By Charles Babington
Washington Post Staff Writer
Wednesday, May 25, 2005

A bipartisan Senate agreement on judicial appointees bore its first fruit yesterday when the chamber voted 81 to 18 to stop filibustering a nominee who has waited four years for a seat on the U.S. Court of Appeals for the 5th Circuit. A confirmation vote for Priscilla R. Owen of Texas is scheduled for today, with Republicans predicting she will pass comfortably.

At least two other nominees have been assured up-or-down votes under the deal. But the Senate's newfound comity may not survive over the long term, several members warned, because party leaders differ on the accord's meaning and several outside groups are still pressing for the type of showdown the negotiators averted.

"This is a truce, not a treaty," said Sen. Orrin G. Hatch (R-Utah). He criticized the agreement and predicted the GOP majority soon will be back on the verge of voting to bar filibusters of judicial nominees. Disputes over two appellate court nominees not mentioned in the accord -- Brett Kavanaugh and William J. Haynes II -- threaten to renew sharply partisan debates next month, Hatch and others said.

Lawmakers' and interest groups' reactions to the agreement, crafted Monday by seven Democratic and seven Republican senators working outside their leaders' circles, ranged from praise to anxiety to indignation. Majority Leader Bill Frist (R-Tenn.), having lost control of the issue, responded cautiously and avoided praise that might antagonize conservative groups angry over GOP concessions. The agreement "makes modest progress but falls far short of guaranteeing up-or-down votes on [all] judicial nominees," he said in a floor speech.

Minority Leader Harry M. Reid (D-Nev.) portrayed the pact as a huge Democratic victory and a stinging rebuke of President Bush and congressional Republicans. Bush, Vice President Cheney and others should "stop to learn some lessons from the American people's rejection of their extreme tactics," he said in a news conference. "Washington Republicans have wasted months by trying to pay off their far right instead of doing what's right."

Bush, who greeted Owen at the White House, said earlier in the day: "I'm pleased that the Senate is moving forward on my judicial nominees who were previously being blocked. These nominees have waited years for an up-or-down vote on the Senate floor, and now they'll get one."

The two-page bipartisan agreement denied Frist the votes he needed to carry out the threat to ban judicial filibusters. It also obligated the seven Democratic signers to refrain from filibusters of judges except in "extraordinary circumstances."

The pact specifically promised to drop long-standing Democratic filibusters of Owen and two other appellate nominees strongly opposed by liberals: Janice Rogers Brown of California and William H. Pryor Jr. of Alabama. Their confirmation votes are likely next month, Senate aides said. The agreement said there would be no commitment to allow votes on two other nominees, William G. Myers III and Henry Saad.

Beyond those provisions, however, the agreement is rife with ambiguity and with bipartisan understandings built around mutual trust rather than clear-cut legalisms, a number of senators said.

Democrats repeatedly said the proposed filibuster ban -- often called the "nuclear" or "constitutional" option -- is now "off the table" for the remainder of the 109th Congress. Not true, said Republicans, warning they will try to ban judicial filibusters the minute Democrats use the delaying tactic to thwart a nominee for anything short of demonstrated ethical shortcomings. "Extraordinary circumstances," both sides agreed, are open to various interpretations.

"I do believe we're going to have to go back to the constitutional option," Hatch said. He predicted that Democrats will be unable to resist filibustering a Bush appointee to the Supreme Court, where many expect one or two vacancies this year.

Democrats said they achieved their top goal: preserving the right to filibuster judicial nominees. But several Republicans said the Democrats have painted themselves into a corner where it will be extremely difficult to exercise that right. To filibuster a Bush nominee on the grounds that he or she is extraordinarily objectionable -- and to have Republicans refrain from banning such filibusters -- will require at least six GOP negotiators to join Democrats in saying the filibuster does not violate their agreement's spirit, lawmakers said.

Under the pact, a filibuster of a Supreme Court nominee will be "almost impossible," Frist said. Sen. Lindsey O. Graham (R-S.C.), one of the 14 negotiators, agreed. "If there's a filibuster for a Supreme Court nominee in the future, where one of the seven Democrats who signed the letter participates [in the filibuster], all bets are off," he said in an interview.

Some conservatives said Democratic negotiators, by accepting Owen, Brown and Pryor, have seriously undermined their ability to object to future nominees on grounds of their political philosophies. Because those three "were characterized by their opponents as the president's most conservative nominees, it is now clear that the Democrats have removed a nominee's 'judicial philosophy' as a means of identifying an 'extraordinary circumstance,' " said Wendy E. Long, counsel to the Judicial Confirmation Network.

Sen. Susan Collins (R-Maine), a key negotiator, said that "if any of the Democrats who signed [the letter] felt compelled because of extraordinary circumstances to launch a filibuster, they would talk with the rest of us" about consequences.

Democrats hailed the agreement's call on Bush to consult with senators before nominating judges. If the president does so, he will be less likely to nominate judges on the far political right, said Sen. Edward M. Kennedy (D-Mass.). And if he refuses to consult, Kennedy said, GOP moderates might feel free to oppose a sharply conservative pick. "I think the people who signed the letter, including the Republicans, would feel that's certainly a betrayal of their understanding," he said, and in such cases, "I'm not sure a filibuster will be needed."

Senators differed on the likely fate of Myers, an Idahoan. Frist's staff said Senate leaders will seek a vote on the appellate court nominee, presumably triggering a Democratic filibuster that would kill his chances. The filibuster would not violate the two-page agreement, Senate aides said, but it might cause some Americans to wonder why Democrats were using the delaying tactic so soon after the heralded announcement. "The American people are going to be smart enough to realize what's going on here," said Reid spokesman Jim Manley.

Staff writers Mike Allen and David S. Broder contributed to this report.

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