Democrats' hopes of blocking a staunchly conservative Supreme Court nominee on ideological grounds could be seriously undermined by the six-week-old bipartisan deal on judicial nominees, key senators said yesterday.
With President Bush expected to name a successor to Justice Sandra Day O'Connor next week, liberals are laying the groundwork to challenge the nominee if he or she leans solidly to the right on affirmative action, abortion and other contentious issues. But even if they can show that the nominee has sharply held views on matters that divide many Americans, some of the 14 senators who crafted the May 23 compromise appear poised to prevent that strategy from blocking confirmation to the high court, according to numerous interviews.
The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under "extraordinary circumstances." Key members of the group said yesterday that a nominee's philosophical views cannot amount to "extraordinary circumstances" and that therefore a filibuster can be justified only on questions of personal ethics or character.
The distinction is crucial because Democrats want to force Bush to pick a centrist, not a staunch conservative as many activist groups on the political right desire. Holding only 44 of the Senate's 100 seats, Democrats have no way to block a Republican-backed nominee without employing a filibuster, which takes 60 votes to stop.
GOP leaders, sensing the Democrats' bind, expressed confidence yesterday that the Senate will confirm Bush's eventual nominee, no matter how ideologically rigid. "I think there is every expectation, every reason to believe that there will be no successful filibuster," Majority Whip Mitch McConnell (R-Ky.) said on "Fox News Sunday."
Under the "Gang of 14" accord, the seven Republican signers agreed to deny Majority Leader Bill Frist (R-Tenn.) the votes he needed to carry out his threat to bar judicial filibusters by changing Senate rules. The seven are implicitly released from the deal if the Democratic signers renege on their end. Yesterday, key players suggested the seven Democrats will automatically be in default if they contend a nominee's ideological views constitute "extraordinary circumstances" that would justify a filibuster.
Sen. Lindsey O. Graham (R-S.C.), one of the 14 signers, noted that the accord allowed the confirmation of three Bush appellate court nominees so conservative that Democrats had successfully filibustered them for years: Janice Rogers Brown, William H. Pryor Jr. and Priscilla R. Owen. Because Democrats accepted them under the deal, Graham said on the Fox program, it is clear that ideological differences will not justify a filibuster of a Supreme Court nominee.
"Based on what we've done in the past with Brown, Pryor and Owen," Graham said, "ideological attacks are not an 'extraordinary circumstance.' To me, it would have to be a character problem, an ethics problem, some allegation about the qualifications of the person, not an ideological bent."
Sen. Ben Nelson (Neb.), a leader of the seven Democratic signers, largely concurred. Nelson "would agree that ideology is not an 'extraordinary circumstance' unless you get to the extreme of either side," his spokesman, David DiMartino, said in an interview.
Heart of the problem
The debate goes to the heart of Democratic leaders' strategy to prevent Bush from replacing the centrist, swing-voting O'Connor with a justice more aligned with conservatives Clarence Thomas and Antonin Scalia. For example, if Bush were to nominate Brown -- the outspoken California judge recently named to the U.S. Court of Appeals for the D.C. Circuit -- "I could assure you that would be a very, very, very difficult fight, and she probably would be filibustered," Sen. Joseph R. Biden Jr. (D-Del.), a senior member of the Judiciary Committee, said on CBS's "Face the Nation."
But Graham flatly rejected that view. With help from only one or two fellow Gang of 14 members, he is positioned to dissolve the deal and thwart Biden's scenario -- either by having enough Democratic signers refuse to back a filibuster, or by having enough GOP members support Frist in outlawing judicial filibusters.
Graham predicted that Bush will nominate "a solid conservative" to replace O'Connor. Noting that the conservative Thomas replaced the liberal Thurgood Marshall, Graham said: "This idea of an ideological balance being maintained by a particular president has never been the standard."
Pressing the nominees
Throughout the weekend, liberal and conservative activists sparred over an issue that has dogged judicial confirmation battles for years: How hard should nominees be pressed to say where they stand on contentious issues that could come before the court?
Sen. John Cornyn (R-Tex.) has said he would not ask nominees where they stand on abortion, affirmative action and similar matters, but Sen. Charles E. Schumer (D-N.Y.) said he certainly would. "The Supreme Court is a lifetime appointment that has enormous power, and I think the number one thing that I am interested in are the nominee's views," Schumer said on ABC's "This Week," where he appeared with fellow Judiciary Committee member Cornyn.
Asked if a senator might press nominees on whether the 1973 abortion rights ruling in Roe v. Wade "is settled law," Cornyn replied: "I think it's an appropriate question to ask what their views are on cases that have been decided and judicial opinions that have been written. But to ask them how they would decide, not knowing what the posture of the case would be if it were presented, I think is inappropriate, and it's asking them to prejudge the case." Schumer appeared surprised by the Roe comment, saying, "Maybe there's less disagreement than it appears."
Judiciary Committee Chairman Arlen Specter (R-Pa.), handling a similar question on NBC's "Meet the Press," said: "I wouldn't say, 'Are you going to uphold Roe?' But I would ask a nominee . . . 'When you have a decision which has been in effect for decades, and people have come to rely upon it, what kind of circumstances, how extraordinary must they be' " to try to overturn it?
The 14 signers of the May 23 agreement have said a Supreme Court vacancy would put their accord to its toughest test, and Republicans seemed eager to oblige them. McConnell said the agreement establishes "that there will be no filibusters except under extraordinary circumstances. And we know that judges like Janice Rogers Brown and Bill Pryor and Priscilla Owen are not an extraordinary circumstance."
Some conservatives would like to see Brown -- who is virulently opposed by many liberals -- elevated to the Supreme Court, arguing that the Senate would be hard pressed to reject her only months after confirming her to the appellate court. But Democrats said the Supreme Court stands alone in importance, and a senator's vote for an appellate court nomination plays no role in a Supreme Court choice. "Totally different ballgame," Biden told CBS.