‘Nuke’ Deal Still in Doubt

Posted April 26, 2005 at 6:46pm

Senate Republicans grappled Tuesday with an offer from Minority Leader Harry Reid (D-Nev.) to avert an endgame in the showdown over judicial nominees, with many Republicans turning a cold shoulder to the offer because they don’t trust Democrats to follow through on it.

The deal centers around the idea that Republicans would pull back a few of their most controversial appellate court nominees in exchange for Democratic pledges to abstain from imposing a filibuster on future nominees, including those to the Supreme Court, except in “extraordinary circumstances,” according to several Senate Republicans and Democrats.

Majority Leader Bill Frist (R-Tenn.), in a morning “dugout” meeting with reporters on the Senate floor, appeared to reject the idea of not allowing some nominees to come to a vote, saying that he was sticking to the “principled” stand of up-or-down votes.

“At the end of the day, one will be left standing: either the Constitution … or the filibuster,” he said.

After a lengthy discussion of the topic at the weekly party luncheons, other Republicans were very leery of what they considered to be a vague promise from Democrats to use the filibuster more sparingly.

“We need a rule that everybody knows is the rule,” said Sen. Jon Kyl (Ariz.), No. 4 in the GOP leadership and a senior Judiciary Committee member.

Reid, who declined to elaborate the details of his offer, renewed his attacks on GOP efforts to end the filibuster on judicial nominees in a floor speech, once again questioning President Bush’s honesty on the issue and linking it to the ethics controversy surrounding House Majority Leader Tom DeLay (R-Texas). Reid did say, however, that he was willing to offer his compromise.

“I believe my proposal strikes the right balance,” he added, explaining without providing specifics that Democrats did not want to mount as many filibusters in the future. “There may come an extraordinary circumstance in the future when it has to be done,” he added.

His top deputy, Minority Whip Dick Durbin (D-Ill.), strongly hinted that if Republicans did not at least offer a counter-proposal, the battle lines were drawn for showdown over what many call the “nuclear option,” the Frist-led effort to change rules to forbid filibusters on judicial nominees.

“He feels that he has worked, over the past several months, night and day on this issue, and he doesn’t feel like he’s getting anywhere,” Durbin said of Reid’s negotiating efforts with Frist and other Republicans. “At this point, they are going to have to show some give.”

Aides later said the offer to use the filibuster less often was not part of the actual compromise deal, and was more like a general pledge to Frist because the Democrats do not have as much will to filibuster judicial nominees.

Democrats are also seeking the removal of the nominations of three of the four most controversial appellate court nominees, as well as one of the four nominees for the 6th U.S. Circuit Court of Appeals.

Durbin said that there was no way Democrats would give up the right to ever mount filibusters against judicial nominees. “That really is a line we won’t cross,” he said, adding, “If we have to face the consequences on that, we will.”

Durbin said Democrats were offering to not filibuster as often, but he declined to define what sort of “extraordinary circumstance” would prompt a future filibuster. “Bork and Fortas are two good examples,” he said, referring to the nominations of Robert Bork, who was rejected for a spot on the Supreme Court in a 1987 floor vote, and Abe Fortas, a sitting justice whose bid to become chief justice was defeated after a failed cloture vote in 1968.

Sen. Ben Nelson (D-Neb.), who has been at the center of many talks aimed at avoiding the showdown, also said that Democrats would not agree to any deal that forced them to give up the future right to force cloture votes requiring 60 votes to move to final passage.

“Nobody wants to give it up altogether,” he said.

Sen. John Ensign (R-Nev.) said the issue of “commitment” was the biggest issue Republicans were facing, wondering if Democrats would go as far as to put something in writing foreswearing filibusters.

Kyl said that Republicans would have to give an awful lot of trust to Democrats in order to move ahead with a deal that lacks many specifics on the use of the filibuster. “For this Congress we’d have to trust their goodwill,” he said.

Sen. Larry Craig (R-Idaho) has been the biggest supporter of William Meyers, a Western lawyer nominated to the 9th U.S. Circuit Court of Appeals who was one of 10 nominees filibustered by Democrats last Congress.

Meyers is now one of the four appellate nominees on the negotiating table, according to Craig, Kyl, Durbin and various other Senators and aides. Craig questioned why Democrats would now be willing to negotiate on judges like Meyers, who they have said for two years is too extreme to get the lifetime appointment, suggesting they were searching for a political solution to their effort.

Under the Democratic plan, Republicans would have to choose among Meyers, Texas Supreme Court Justice Priscilla Owen, California Judge Janice Rogers Brown or U.S. Judge William Pryor, only one of which would be approved in an up-or-down vote.

“These are real people, these aren’t poker chips,” Kyl said dismissively.

“The problem is, it’s a matter of principle and it’s hard to compromise principle, and what’s been offered by Democrats is clearly not principle,” he added.

Senate Majority Whip Mitch McConnell (R-Ky.), speaking after Reid’s floor speech, noted that a key point of contention is the “suspicion that many of us have” that Democrats will filibuster President Bush’s Supreme Court nominees with most Senators expecting at least Chief Justice William Rehnquist to step down at the end of the court’s current term in June.

Sen. Charles Schumer (N.Y.), the chairman of the Democratic Senatorial Campaign Committee, said that in spite of recent polling showing the public did not approve of the nuclear option, Democrats wanted to offer a good-faith compromise which requires each side to give a little.

“We are acting here out of strength, not out of weakness,” Schumer said.

But public polling on the incredibly arcane issue of Senate parliamentary procedure has been anything but reliable, with swings of up to 40 points in either direction depending on how the question is asked by the pollster.

McConnell confirmed some recent reports that the preferred technique for the maneuver would be obtaining a ruling from the chair that the efforts at cloture on judicial nominees were “dilatory,” which was the technique Sen. Robert Byrd (D-W.Va.) used in the late 1970s and late 1980s to cut off attempts at filibustering after cloture was invoked.

Up to now most talk among Republicans has centered on getting the chair — to be occupied by Vice President Cheney if the issue comes to a head — to rule that filibusters were unconstitutional. McConnell, in his floor address, said the Republicans would be seeking “simply a precedent interpreting the rules of the Senate.”

“It’s been done before, and the Byrd option could be done again,” he said.

It would take 51 votes for Reid and the Democrats to overturn such a ruling.