Brushing aside the sniping of their mostly conservative critics, the Senate’s newly minted “Gang of 14” pledged Tuesday to continue working together on judicial nominations if and when the issue again comes to a head, particularly if a Supreme Court vacancy creates a new crisis.
Both Democrats and Republicans in the group, which pulled the plug on the expected “nuclear” showdown Monday with a last-minute deal, said that their agreement was strong and could withstand the pressure from colleagues and outside activists who have already set out to unravel it.
“That was not an easy task,” Sen. John Warner (R-Va.) said of the intense effort to garner signatures of 14 Senators on a vow to oppose their leaders. “By putting our signatures on the line, I think there’s a certain bond between us.”
Sen. Ben Nelson (D-Neb.) said the group has made a pact that if there comes a point when a significant number of the seven Democrats are considering supporting a filibuster, the group will reconvene and hash out the issue.
“You could be sure that we’re going to consult one another,” said Nelson, who led the Democratic efforts on the compromise.
On a day that was supposed to be the culmination of more than three years of hand-to-hand combat on judicial nominations, Warner, Nelson and the dozen other signatories to the deal found themselves under constant pressure to further define their pact and explain what they meant by using phrases such as “good faith” and “extraordinary circumstances.”
The group continued to maintain that the words on their “memorandum of understanding” were there to speak for themselves, but brief interviews with half the Members of the group began to reveal some of the inner meaning for which they all believe to have pledged Monday night.
Warner, in a conference call with reporters Tuesday afternoon, made clear that any one Democrat in the group could branch out on his own in the future and support a filibuster without any repercussions from the Republicans. “A single Senator can break off from this thing and exercise his or her free will,” he said.
But to Warner, the issue would change if a handful or more of the Democrats were joining in what he labeled “leadership-led” filibusters, a series of filibusters against nominees that indicated “any semblance of returning” to a large number of blocked nominees such as the 10 who were denied confirmation in the 108th Congress.
“If the Republicans view that the good faith ... is being breached, then we would get together again,” Warner said, indicating the group would have to revisit their agreement.
At that point, the Republicans in the deal might pull out and support the “nuclear” option to change Senate precedents on a party line vote and eliminate judicial filibusters. “It does not take it off the table, it is there,” Warner said of the rule change.
And the Republicans in the group reiterated that their agreement allows their Democratic counterparts to have a free vote on two already filibustered nominees, William Myers and Henry Saad, making it highly likely those circuit court nominees would not gain the 60 votes needed for cloture.
“Some people make it and some people don’t,” Sen. Lindsey Graham (R-S.C.) said.
Frist did not say Tuesday whether he would bring Myers and Saad up for a vote after the Memorial Day recess. A final vote to confirm Texas Supreme Court Justice Priscilla Owen is expected today, with votes on two others guaranteed confirmation by the centrist deal — California Supreme Court Justice Janice Rogers Brown and 11th U.S. Circuit Judge William Pryor — coming late this week or after the recess.
Graham predicted this deal will actually make it easier for a Supreme Court choice by President Bush to get confirmed, saying that he doesn’t think the Democrats would agree to filibuster a nominee based solely on conservative ideology.
“We’ve got a chance to deal with Supreme Court nominees anew,” he said, adding, “The fact that you’re conservative is no longer an extraordinary circumstance.”
Republicans in the group faced fierce criticism from conservatives, including their Senate colleagues and outside activists, who appeared to avoid overt criticism of Majority Leader Bill Frist (R-Tenn.) and instead trained their fire on Warner, Sen. John McCain (R-Ariz.) and the other Republican signatories to the pact.
Sen. George Allen (R-Va.), a potential contender for his party’s 2008 presidential nomination, sharply criticized the deal Tuesday and distanced himself on the issue from his home-state colleague, Warner, who later acknowledged that he never spoke to Allen about the issue.
“We clearly have different views on the filibuster,” Allen said of Warner.
Tony Perkins, president of the Family Research Council, said Frist was “betrayed” by the seven Republicans and noted the majority leader did not lose his standing among those in the movement. Perkins said he expected his organization and others to express their dissatisfaction with the Senators’ actions.
“I think there will be a clear effort to communicate what has happened and the seven who stepped forward and snatched defeat from the jaws of victory,” Perkins said.
It remains unclear whether Frist had the minimum 50 votes needed, along with Vice President Cheney’s tie-breaker if necessary, to win a showdown vote. Warner and Sen. Arlen Specter (R-Pa.) appeared to be the two most critical votes, and neither would say Tuesday how they were going to vote.
Democrats in the group backed off of reports that they had secured an unspoken agreement to be able to filibuster, if necessary, a pair of other controversial nominees: Brett Kavanaugh, a former deputy of Kenneth Starr’s during the Whitewater investigation, and William Haynes, a Pentagon official involved in drafting memos connected to terrorist interrogation techniques.
“We did talk about those, but let’s let the agreement speak for itself,” said Sen. Mark Pryor (D-Ark.), who helped Nelson lead the effort. Nelson added there was no point in discussing Kavanaugh and Haynes because “they’re not even out of the [Judiciary] Committee.”
McCain said reports of such a side deal were simply “not true.”
Out of favor with conservative leaders since his 2000 presidential campaign, McCain said he has no problem with social conservatives outside the Beltway. “My polling numbers — center, left and right — are fine,” he said.
McCain added that the group would have the strength to hold up to the pressure from activists on the right and left.
“I have every expectation this is permanent,” he said.