The Senate voted Tuesday to end years of delaying tactics that blocked the nomination of Priscilla Owen to a federal judgeship, the first fruit of a bipartisan agreement to break the logjam over President Bush’s judicial choices.
“I appreciate the fact I’m finally going to get a vote,” said Owen, swiftly invited to the White House for a presidential show of support.
“She is my friend and more importantly she is a great judge,” said Bush, a fellow Texan.
The vote was 81-18 to clear Owen for a final vote after Democrats abandoned four years of blocking action, well above the 60 votes needed to cut off debate. That made confirmation a mere formality, with a vote set for midday Wednesday.
Opponents of the Texas Supreme Court justice fell well short of the 41 needed to continue their filibuster. Owen's nomination to a seat on the 5th U.S. Circuit Court of Appeals has been blocked four times by Democratic filibusters in the four years since Bush first nominated her early in his first term.
But this time she benefited from an agreement reached by seven Republican and seven Democratic senators, reached Monday, that opened the way for yes-or-no votes on some of Bush’s stalled nominations while protecting the future right of Democrats to use the filibuster to block nominees they feel are out of the mainstream.
“It is time to close our debate,” said Senate Majority Leader Bill Frist, R-Tenn., who led the ill-starred effort to deny Democrats the use of the filibuster for judicial nominations.
Deal breaks the ice
The agreement was greeted with a sigh of relief by senators fearing a damaging clash over filibuster rights, but was greeted cautiously by the head of the Democratic Party and questioned by a potential Republican presidential contender.
“I would be hesitant to say it’s a win for the Democratic Party,” said party Chairman Howard Dean in an interview with The Associated Press. That won’t become clear, he added, until “we find out if the president consults with the Democrats” on future judicial nominees.
There was outright criticism among some Senate Republicans as well as conservative interest groups.
“Overall this is a major disappointment on principle,” said GOP Sen. George Allen of Virginia, a potential contender for the White House in 2008. “...This so-called deal is disappointing for all of us who believe in the principle that persons should be accorded the fairness and due process of an up or down vote. Everyone should also clearly see that ultimately, nothing has been settled when a vacancy arises on the U.S. Supreme Court.”
Frist, also a possible White House challenger, said for the second day in a row that he was “not a party” to the agreement sealed Monday night averting a showdown over Bush’s stalled judicial nominees and the Senate’s own filibuster rules.
At the same time, he said it “makes modest progress, but falls far short of guaranteeing up or down votes on judicial nominations. It needs to be carefully monitored and executed in good faith.”
Whatever the long-term implications of the agreement, after a wait of more than four years, Owen seemed headed for confirmation at long last, by Wednesday at the latest.
Owen, currently a Texas Supreme Court justice, was nominated to the 5th U.S. Circuit Court of Appeals, based in New Orleans. With the threat of a filibuster by Democrats removed, Owen was nearly certain to get the simple majority vote needed to give her the seat that has eluded her since being nominated in 2001.
“It’s about time,” Bush exclaimed. “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 on the Senate floor, and now they’ll get one.”
For their part, Senate Democratic Leader Reid and his House counterpart, Rep. Nancy Pelosi scheduled a “unity event” to argue that the agreement was a victory—and a message to the White House that the president must consult with Congress on future court nominees.
In his interview with the AP, Dean said the accord “was a huge loss for the right wing... It was clearly a loss for the president because he was getting accustomed to ramming things through the House and the Senate without any confrontation. It was a win for America because minority rights were supported.”
“I would be hesitant to say yet that it’s a win for the Democratic Party,” he said. “It’s a real test of whether this is a real long-term agreement. That will come when we find out if the president consults with the Democrats.”
Aside from Allen, prominent conservative activists criticized the compromise. “I don’t think the leadership caved, it was a handful of senators who preferred to stay in the Land of Political Indecision,” said Tony Perkins, head of the Family Research Council.
“There will be repercussions” for the GOP senators who defected, Perkins vowed in an AP interview, mentioning Sens. Mike DeWine of Ohio, Lindsey Graham of South Carolina and John Warner of Virginia.
Open to interpretation
Frist and Reid disagreed on one key point. The Republican said the agreement left open the possibility that he could yet attempt to strip Democrats of their right to filibuster future nominees. Reid said that avenue was closed.
The language seemed open to interpretation.
The seven Democrats and Republicans who signed it said future nominees should be filibustered — denied final votes — only under extraordinary circumstances, with each senator retaining the right to decide if that condition had been met.
The self-appointed compromisers also agreed to oppose changes in filibuster procedures “in light of the spirit and continuing commitments made in this agreement.”
The agreement, crafted over the past several weeks in closed-door meetings, opened the way for yes-or-no votes on Owen and two other of Bush’s judicial picks who have been in nomination limbo for more than two years — William H. Pryor Jr. for the Atlanta-based 11th U.S. Circuit Court of Appeals and Janice Rogers Brown for the U.S. Court of Appeals for the District of Columbia Circuit.
The bigger picture
There were other political implications, as well, including the shape of the Supreme Court, the midterm election in 2006, Bush’s legislative agenda and the next presidential race, especially the prospects for Frist and potential GOP rival Sen. John McCain of Arizona.
McCain, who led the compromise effort with Sen. Ben Nelson, D-Neb., said, “We tried to avert a crisis in the United States Senate and pull the institution back from a precipice.”
A battle over judicial nominations that began in Bush’s first term had been headed toward a more dramatic conclusion, with Frist planning to employ what both sides came to call the “nuclear option” because of its potentially disruptive effects.
Had the Democrats used their filibuster powers again to stop Owen, Frist would have sought a ruling from the chair, which can be approved by a simple majority, that filibusters should not be allowed to obstruct judicial nominations. Vice President Dick Cheney, as president of the Senate, was prepared to take the chair to break a tie vote.
Unlike the House, where the majority rules, the majority in the 100-seat Senate must at times gain 60 votes to proceed on legislation over the objection of the minority. Republicans, with 55 seats have had difficulty reaching that threshold against united Democratic opposition.
The stakes were far broader that the three circuit court nominations, with Republicans maneuvering to strip Democrats of their right to filibuster and thus block current and future nominees to the appeals courts and Supreme Court.
There currently is no vacancy on the high court, although one or more is widely expected in Bush’s term. during the day was a reminder of that. At age 80 and battling thyroid cancer, he entered the building in a wheelchair on his way to a doctor's office.