Senate Judiciary Committee Chairman Arlen Specter speaks at a press conference in Washington
Jason Reed  /  Reuters
Senate Judiciary Committee Chairman Arlen Specter is trying to round up Democratic votes to defeat judicial filibsuters.
By Tom Curry National affairs writer
updated 3/1/2005 4:20:05 PM ET 2005-03-01T21:20:05

Can Senate Judiciary Committee Chairman Sen. Arlen Specter, R- Pa., help the Senate avoid a constitutional meltdown over Democratic filibusters of President Bush’s judicial nominees?

Undergoing chemotherapy for cancer of the lymph nodes, but looking remarkably spry Tuesday, Specter is doing his best to avoid a showdown.

Specter took the helm of his committee Tuesday for the first time since announcing his illness and shepherded the first judicial nominee of the 109th Congress, William Myers, through his grilling by antagonistic Democrats.

Bush has re-nominated Myers, a Boise, Idaho attorney and formerly the Interior Department’s top lawyer, to serve as an appeals court judge on the Ninth Circuit.

Last July, Democrats scuttled Myers’s nomination with a filibuster. But two Democrats, Sen. Joe Biden of Delaware and Sen. Ben Nelson of Nebraska, joined with 51 Republicans to add up to 53, seven votes shy of the 60 needed to end a filibuster.

Nelson told reporters Tuesday he expects to continue to vote to end filibusters on Bush nominees, although he wouldn’t commit himself specifically on Myers.

Salazar appeals to Bush
Also on Tuesday, another key Democrat, freshman Sen. Ken Salazar, D- Colo., sent a letter to Bush urging him to withdraw all of the judicial nominees whom he’d previously nominated but who had not been confirmed in the last Congress.

That group includes Myers and six others whose nominations Senate Democrats had filibustered to death last year.

Salazar reminded Bush of “the conversations we have had about the need to transcend partisanship” and of his votes for Bush’s cabinet nominees, including Attorney General Alberto Gonzales.

(Salazar’s fellow Democrats were chagrined when the senator appeared at Gonzales’s side to introduce him at the Judiciary Committee’s confirmation hearings on Jan. 6. One Senate Democratic source said Tuesday that fellow Democrats let Salazar know of their unhappiness.)

In his letter, Salazar told the president that re-nominating those the Senate hadn’t confirmed last year would “create the animosity and divisiveness” which would make it difficult “to work on other crucial matters.”

Salazar’s letter indicates that, as with Specter on the GOP side, there are Democrats who would love to avoid a showdown on judicial nominees.

What’s at stake is the federal bench. The Democrats are fighting so hard because the judiciary is the last branch where they have some control, with 367 Bill Clinton and 258 Jimmy Carter appointees lending liberal or moderate leavening to the bench.

What makes Salazar’s position especially crucial is that, as Colorado attorney general, he made a point of saying during his Senate campaign last fall that he, along with 13 other states’ attorneys general, had signed a letter of support for Myers.

“I’m not a partisan guy,” Salazar told during last fall’s campaign, citing the Myers endorsement letter as proof of his non-partisanship.

Schumer sees 'extremism'
Judiciary Committee Democrats spent much of Tuesday’s hearing assailing Myers for what Sen. Charles Schumer, D- N.Y., called “your extremism on environmental and land issues.”

Looking across at the nominee, Schumer said, “Your record screams passionate activist.”

Schumer cited articles by Myers, including one in which he compared Clinton administration regulations imposed on Western ranchers to King George's reign over the Thirteen Colonies.

Included in the Democrats’ bill of particulars against Myers:

  • As Interior Department solicitor, he helped approve a gold mine on land considered sacred by a California Indian tribe.
  • He had filed a friend of the court brief to help pave the way for a kitty litter clay mine near Indian land in Nevada. The tribe cited evidence the mine could jeopardize the Reno-Sparks Indian Colony’s water supply.

But Myers said his actions at the Interior Department proved his environmental record was a good one, including blocking gold mining within Denali National Park in Alaska and working with Penobscot Indians in Maine to allow removal or alteration of dams to ensure the survival of salmon, eel and shad species.

“I count 58 votes for cloture, so we’re within hailing distance,” Specter told Myers. “I think you’ve helped yourself today, Mr. Myers, and I think you’ve helped the cause of trying to avoid the constitutional issues which we are all conversant with.”

Talking to reporters after the Myers hearing, Specter said, “I wanted to put on a hearing which would establish that it is respectable for Democrats to vote for cloture and I think we accomplished that.”

The Judiciary chairman said he included Salazar, Biden, and Nelson in his tally of 58.

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Referring to Salazar, Specter said, “The odds are very good that he will be for him (Myers). And there are some other Democrats whom I’m working on.”

But Salazar’s spokesman Cody Wertz said Tuesday the Coloradan had not yet made up his mind on cloture for Myers.

Frist wants filibusters ended
Senate Majority Leader Bill Frist has promised he’ll take steps to eliminate the Democrats' use of the filibuster to block Bush’s judicial nominees. Frist could seek a rules change that would allow filibusters of presidential nominations to be stopped with 51 votes, not 60.

Senate Democratic Leader Harry Reid has indicated he'd bring all Senate business to a halt if Frist attempts this rules change.

“We saw a radical change in the last Congress which can’t be tolerated by the American people and shouldn’t be tolerated,” Frist told reporters Tuesday.

But in the next breath, he sounded conciliatory, “I’m trying to show restraint and I’m asking the Democrats to show restraint. Let’s sit back, try to come together, and simply commit to go through whatever process it takes … but ultimately give these nominees, who we know have majority support, an up-or-down vote.”

Perhaps playing the role of the great conciliator, Specter said a few hours before Frist spoke, that the rules change was “one to be taken with great reluctance, if at all.” Specter said he has not yet taken a position on whether he’d vote for the rules change.

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