Judicial Battle Likely Still Months Away

Posted February 15, 2005 at 6:42pm

Even after the White House submitted a dozen previously considered appellate court nominees this week, the much anticipated Senate floor fight over judges is still many weeks away.

Senate GOP leaders are still planning to push legislative issues through the Judiciary Committee — such as class action, which just passed the full chamber last week, and bankruptcy, which goes to committee markup Thursday — before the panel tackles its most contentious issue: nominations.

“I don’t think we are rushing to move nominees on to the floor right now,” said Sen. Rick Santorum (Pa.), the GOP Conference chairman.

This delay in taking up judicial nominations is designed to allow the panel to first move legislative items that have languished for years, issues Republicans believe have a better chance of passing if taken up before a major fight over judges consumes the already polarized Judiciary Committee.

Santorum, who in the past has been an ardent supporter of an aggressive approach to pushing judges to the floor, said the added bonus of delaying judges was the “glimmer of hope” that the two sides could reach an agreement to avoid Democratic filibusters of President Bush’s judicial nominees.

Those negotiations with Democrats are being led by Judiciary Chairman Arlen Specter (R-Pa.), who hopes to first move one of the appellate court nominees who has yet to be actually filibustered to test Democrats’ reaction.

But by waiting until mid-February to send up the nominees, Bush has virtually ensured that the battle can’t be fully engaged on the Senate floor until April. Aides and Senators said that the first order of business after next week’s Presidents’ Day recess would be the bankruptcy bill, which could eat up floor time until mid-March. Plus, with bankruptcy on the committee calendar this week, Judiciary’s first hearing on judicial nominees won’t come until March 1.

The Senate leaves March 18 for its two-week spring recess, making early April the earliest possible time frame for a floor fight on any nomination.

And some Senators and aides think that fight could slide even later into the spring, because the chamber will be under pressure to pass the budget resolution either before the spring recess in March or the first two weeks in April. The statutory deadline for passing the budget is April 15.

The delay in sparking the judicial nomination fight also gives Republicans more time to shore up support on their side for the so-called “nuclear option,” the unilateral move to obliterate filibusters on judges by a parliamentary procedure requiring a simple majority vote.

While Majority Leader Bill Frist (R-Tenn.) has publicly indicated confidence in his ability to round up the 50 necessary votes for the nuclear option, Republicans continue to press their own Conference to back the plan.

Recently, Republicans who had been wavering on the issue have been given a large briefing book about the constitutional history of the Senate and nominations. Most of the writing in the book comes from Marty Gold, a parliamentary expert and longtime GOP lobbyist who recently was a top aide to Frist before returning to K Street.

Sen. Trent Lott (R-Miss.), who has been helping leadership whip support for the nuclear option, held his thumb and index finger about an inch apart to show thick the Gold briefing book was.

Some Senators who have been very skeptical of the unilateral approach to ending filibusters appear to have been swayed at least a bit by their GOP colleagues. Sen. John Warner (R-Va.), who for more than a year has warned about the potential fallout of the one-sided approach, said Tuesday that he has been reading his briefing books studiously and has found it “interesting.”

“I am not committing to any position until I finish my research,” said Warner, chairman of the Armed Services Committee.

Other “old bulls” have been wary of the nuclear option as well, partly because the potential backlash could ruin their ability to move legislation out of their panels. But some are tired of the Democratic stalling.

Sen. Pete Domenici (R-N.M.), chairman of the Energy and Natural Resources Committee, issued a blunt warning to Democrats that continued filibusters would force him to join with Frist, Santorum and other GOP Senators pushing the nuclear option.

“If they push me, I’ll go,” he said of more filibusters. “If they push me, I’ll be with the leader.”

There appear to be at least three solid “no” votes on the GOP side if there were a vote on the nuclear option. Sens. John McCain (Ariz.), Lincoln Chafee (R.I.) and Olympia Snowe (Maine) all reiterated their opposition Tuesday to the approach.

That leaves Republicans room for just two other defectors if they are to reach 50 votes, in which case Vice President Cheney would cast the tie-breaking vote to end filibusters on judicial nominations.

Democrats have not yet polled their Caucus to see if any of the 12 appellate nominees would garner the five votes in favor of confirmation that would likely be needed to reach 60 votes and thwart a filibuster.

“At this moment I can’t tell you that any of them have been vetted through our Caucus,” Minority Whip Dick Durbin (D-Ill.) said Tuesday.

Of the 12 appellate nominees, seven have already been filibustered by Democrats in the 108th Congress. While Republicans picked up four seats in the elections, they also picked up seats in states where Democrats were already supporting some of the judicial nominees.

Even if new Sen. Ken Salazar (D-Colo.) bucked his party and voted with Republicans to confirm some of the nominees, Republicans would be topped out at 58 votes on three of the seven already filibustered nominees, with the others receiving fewer votes for confirmation. That’s assuming all Republicans vote to confirm, and all other Democrats vote as they have previously.

Democrats would still have the numbers to defend their filibusters, if they chose to do so, which could prompt the nuclear showdown.

“We hope we don’t have to face it,” Durbin said. “But if we do, we’re going to face it head on.”