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Senators gird for battle over judges, filibuster

Senate Majority Leader Bill Frist announced Friday he will seek a vote next week on two of President Bush’s conservative judicial nominees blocked by Democrats, paving the way for a major showdown in the legislative body.
Senate Majority Leader Bill Frist talks to reporters about the so-called "nuclear option" during a Tuesday briefing.Matthew Cavanaugh / Sipa Press
/ Source: NBC News and news services

Setting the stage for a politically charged showdown, Senate Majority Leader Bill Frist announced Friday he will press beginning next week for the first of President Bush’s conservative court nominees long blocked by Democrats.

“It is time for 100 senators to decide the issue of fair up-or-down votes for judicial nominees after over two years of unprecedented obstructionism,” Frist’s office said in a statement.

Democratic Leader Harry Reid of Nevada said he was ready. “The time has come for Republican senators to decide whether they will abide by the rules of the Senate, or break those rules for the first time in 217 years,” he said in a written statement.

Showdown looms
The announcement cleared the way for a momentous showdown that blends constitutional and political issues — the meaning of Congress’ power to advise and consent in a president’s nominees and the ability of a political minority to influence the outcome. And while the clash nominally applies only to appeals court judges that Democrats oppose, Republicans hope to use it to eliminate the ability of democrats to block a vote on any future Supreme Court nominee.

Frist, R-Tenn., and Reid have been engaged in compromise talks that could avert a showdown, but so far, there is no indication that an agreement is in sight.

In a reflection of the importance attached to the confirmation battles, interest groups on both sides of the issue have aired television advertisements, conducted polling and targeted wavering senators with grassroots lobbying efforts as part of an effort to prevail.

Frist said the focus of GOP efforts beginning next Tuesday or Wednesday will be on two women nominees — Priscilla Owen, first nominated in 2001 to serve as a judge for the 5th Circuit Court of Appeals; and Janice Rogers Brown, tapped in 2003 to serve on the U.S. Circuit Court of Appeals for the District of Columbia.

Nominations blocked twice
Democrats refused to allow a yes-or-no vote on 10 of Bush’s first-term appeals court nominees. The president renominated seven of them this year, Owen and Brown among them, and Democrats vowed to block their confirmation once again.

Barring a deal, Frist said he would make a procedural move that would allow a filibuster on a judicial nominee to be halted with a majority vote rather than the current requirement of 60 votes.

The Senate showdown over judicial nominations will begin Wednesday on the Senate floor. But the actually execution of the so-called "nuclear option" would likely not happen until the week of May 23.

Assuming that it is successful, which is uncertain, the Senate could then confirm Owen and Brown with simple majority votes.

Some Republicans uncommitted
Republicans hold 55 seats in the Senate, and can afford six defections and still prevail in the showdown over filibusters on the strength of Vice President Dick Cheney’s tie-breaking vote. So far, GOP Sens. John McCain of Arizona and Lincoln Chafee of Rhode Island have announced they will break ranks, and many vote-counters say they expect GOP Sen. Olympia Snowe to vote with the Democrats.

Several other Republicans — enough to tip the outcome — remain publicly uncommitted.

Frist signaled weeks ago he would make Owen a pivotal figure in the struggle to confirm Bush’s nominees.

“She has received praise from both parties,” he said in remarks before a group of religious conservatives rallying against what they called a “filibuster against people of faith.”

“Justice Owen has also been a leader for providing free legal services to the poor. And she has worked to soften the impact of legal proceedings on children of divorcing parents,” he said.

Owen, Brown called extremists
Democrats have a different view, arguing that she is an ultraconservative activist who uses the bench to rule against consumers, working people and minors who want abortions.

Brown, the 54-year-old daughter of an Alabama sharecropper, was nominated by Republican Gov. Pete Wilson as the first black woman to sit on the California Supreme Court. Regarded as one of the most conservative of the bench’s seven members, she also is prolific, authoring more opinions and dissents last term than any other.

But a Democratic review of her record depicts her as “bringing her extreme ideological agenda to the bench.”

Frist made no mention of five other nominees whom Democrats have blocked.

One senior Republican aide, speaking on condition of anonymity, outlined a complicated scenario likely to play out over as much as a week or two.

Initially, this aide said, Frist will inaugurate a lengthy period of debate over Owen and Brown without seeking a confirmation vote. After perhaps a few days, he intends to seek a test vote on one of the two women that Republicans hope will demonstrate majority support.

If Democrats then refuse to allow a final yes or no vote, this aide said Frist is prepared to seek a parliamentary ruling to establish a new procedure to cover confirmation of all appeals court and Supreme Court nominees — a fixed amount of time for debate followed by a vote, no filibuster permitted.

Frist concedes to constitutional point
The fate of that proposal will determine which side prevails — whether Bush’s nominees will be guaranteed a yes or no vote, or whether Democrats will retain the right to block them.

“Members must decide if their legacy to the Senate is to eliminate the filibuster’s barrier to the constitutional responsibility of all senators to advise and consent with fair, up-or-down votes,” Frist’s statement said.

Democrats dispute the contention that the Constitution requires a yes-or-no vote, and Frist himself conceded the point on the Senate floor on Thursday in an exchange with Democratic Sen. Robert C. Byrd of West Virginia.

“The answer is no, the language is not there,” he said.

Moreover, Reid said in his statement that if there were such a requirement, “more than 60 of President Clinton’s nominees had their rights violated.” He referred to dozens of nominations that Clinton sent to the GOP-controlled Senate over six years, only to have them disappear into the Judiciary Committee and never emerge.