In the afterglow of the bipartisan accord announced Monday night to avert a Senate showdown on changing the filibuster rule, Senate Majority Leader Bill Frist emphasized Tuesday that he wasn’t a party to the deal and would quickly try to implement the rule change if Democrats resumed use of the filibuster to derail President Bush’s judicial nominees.
Frist’s proposal, which he calls “the constitutional option,” and which his foes call “the nuclear option” would lower the threshold for ending Senate debate on a judicial nominee from 60 to 51.
Monday night’s bipartisan deal prevented a vote on Frist’s proposal, as seven GOP senators promised to vote against it.
“The constitutional option will be used if… mindless, irresponsible filibusters become the tool of choice for the Democrats,” Frist told reporters.
A fragile deal
Thus Frist made it clear only 18 hours after the accord was announced just how brittle it was. It seemed that a decisive vote over filibusters of judicial nominees had only been deferred for a while.
The bipartisan accord announced Monday night by Sen. John McCain, R-Ariz. and signed by 14 senators, seven from each party, allows Senate Democrats to use the filibuster to thwart future Bush nominees, if any nomination creates what any of the seven Democrats defines as “extraordinary circumstances.”
One fact dominated all of Tuesday’s morning-after strategizing: Democrats have for the time being maintained their ability to win on judicial nominees.
Forty-one Democratic senators can still defeat 59 Democratic and Republican senators who would vote for ending a debate on a nominee.
One prominent Republican senator, George Allen of Virginia voiced his revulsion with the bipartisan accord Tuesday, calling it a “capitulation” which would be impossible to explain to “people out there in the real world.”
Alluding to the prospect of a Supreme Court vacancy, Allen said, “I can imagine the Democrats saying that this is an ‘extraordinary circumstance’… So we’re going to have to go through this battle then. I would have liked to have it settled now.”
Shifting focus to Bolton
With an incentive to change the topic and try to regain his tactical initiative, Frist moved to schedule a floor vote this week on the nomination of John Bolton, Bush’s choice to be ambassador to the United Nations.
Immediately after Wednesday's noon confirmation vote on the nomination of Texas Supreme Court Justice Priscilla Owen to the the Court of Appeals for the Fifth Circuit, Frist will open debate on the Bolton nomination.
He hopes to reach an agreement with Senate Minority Leader Harry Reid to allocate time for debate so that the Senate can vote on the Bolton nomination by Friday.
Meanwhile, at least one Senate power broker was trying Tuesday to parlay any good feeling that lingered after the deal on judges to get legislation passed.
“There may be a certain sense of euphoria around the Senate; it’ll probably last as much as 24 or 48 hours,” said Judiciary Committee chairman Sen. Arlen Specter, R- Pa. He will try to get his committee to approve the asbestos reform litigation bill by Friday.
Senate strategists were looking to a key date on the calendar: June 27, the last day of the Supreme Court’s term and often the day on which retiring justices have announced their retirements.
Will deal influence Bush choice?
Would the fact that the Democrats retain their power to filibuster persuade Bush to nominate a more “moderate” choice, if there is a Supreme Court vacancy?
Specter seemed to hint at that outcome as he told reporters that the separation of powers between the president and Congress “functions best when people are a little uncertain as to how it is going to work out.”
In other words, if Bush knew his nominee needed 60, not merely 51, then he might choose a less conservative nominee.
The Senate and Bush “are now back to pre-1987 (before the defeat of conservative Supreme Court nominee Robert Bork). Everything is a little on tippy-toes as to how to proceed and that is the best way for our separation of powers,” Specter said.
The GOP leadership expects at least two of the Republican senators who signed Monday night’s “Memorandum of Understanding on Judicial Nominations” — Sen. Lindsey Graham of South Carolina and Sen. Mike DeWine of Ohio — to back Frist by voting for the rule change, if Democrats revert to filibustering.
“This will rest squarely on their shoulders,” said Don Stewart, a spokesman for Sen. John Cornyn, R- Texas, referring to DeWine, Graham and the other GOP senators who signed the Memorandum of Understanding. “They made this deal and it is incumbent on them to enforce it.”
Dispute over two other nominees
One unwritten part of the accord, according to two Capitol Hill sources, was that Bush appeals court nominees William Haynes and Brett Kavanagh, will not get votes on the Senate floor.
But Graham vehemently denied that on Tuesday. “That’s all just garbage. I don’t know where that came from,” Graham said.
Sen. Mark Pryor, D- Ark, one of the Democratic signatories to the deal, was equivocal, saying “We talked about all kinds of different scenarios and nominees and names and what-ifs, and we did talk about those (Kavanagh and Haynes), but let’s let the agreement speak for itself.”
Almost as a footnote to Tuesday's maneuvering, at noon the Senate voted 81 to 18 to end debate on Owen's nomination. Bush first nominated her to the Court of Appeals for the Fifth Circuit four years ago.
On the vote to end debate, Democrats such as Sen. Charles Schumer of New York who had portrayed Owen as “way out of the mainstream” voted to close off debate, setting the stage for her confirmation vote.