Judges Fight Set For Next Week

Posted May 10, 2005 at 6:46pm

Senate Majority Leader Bill Frist (R-Tenn.) set the stage Tuesday for the final showdown over judicial filibusters, declaring that he would bring up judicial nominees for floor debate next week.

Frist said that once the highway bill is cleared, which should happen by the end of this week, the chamber would begin its first consideration this year of one of President Bush’s controversial judicial nominees. That would begin the process that could lead to a historic vote on a parliamentary tactic to end filibusters.

“We need to turn to 100 United States Senators and move to the issue surrounding judges,” Frist said, adding later, “It’s time to do that.”

Frist’s pronouncement, which was his first public declaration of when the judicial floor battle would begin, comes as some undecided Senate Republicans and Democrats were trying to find a way to avoid a showdown, and as the Democratic leadership began its final push to deny Frist the 50 votes he needs to end filibusters.

Frist declined to say specifically which nominee would be brought up first, but he seemed to confirm media reports, including one in Tuesday’s Washington Times, that the plan would be to call up Texas Supreme Court Justice Priscilla Owen. She was the only nominee Frist cited by name at Tuesday’s weekly press conference.

Owen could become the most tangible symbol of the current judicial wars.

Nominated in May 2001, Owen was rejected by the Judiciary Committee in 2002 when it was controlled by Democrats, only to be renominated by Bush in 2003, when the GOP was back in control. Filibustered in 2003 and 2004, Owen now stands on the verge of becoming the first nominee confirmed by a simple majority vote — if the Senate goes “nuclear.”

Frist shrugged off any compromise offer that didn’t guarantee a straight up-or-down vote on Owen and the six other circuit court nominees who were filibustered in the 108th Congress and have been renominated by Bush this year. “It’s hard to compromise to the extent that people don’t get an up-or-down vote,” he said.

Democratic leaders similarly dismissed suggestions from Sen. Ben Nelson (D-Neb.), as well as several Republicans, that a deal could be reached that would virtually assure confirmation to Bush’s judges, including Supreme Court nominees, except for a couple of the already filibustered nominees.

Senate Minority Whip Dick Durbin (D-Ill.) said the Democrats would not give up their right to filibuster nominees such as Owen. “The bottom line is protecting this Senate tradition,” Durbin said.

Minority Leader Harry Reid (D-Nev.) formally rejected a compromise offer Frist made to Democrats almost two weeks ago. Reid’s decision didn’t come as a surprise to anyone since he had initially labeled the Frist offer a “wet kiss” to Christian conservative GOP activists.

The biggest question hanging over next week’s debate is whether Frist has the votes necessary to pull off the historic move. Two GOP Senators, John McCain (Ariz.) and Lincoln Chafee (R.I.), have stated their outright opposition to Frist’s move, and a third, Olympia Snowe (Maine), has sent every signal possible that she doesn’t support the effort.

That leaves several critical swing votes, including Sens. John Warner (R-Va.), Susan Collins (R-Maine), Arlen Specter (R-Pa.), Chuck Hagel (R-Neb.) and Mike DeWine (R-Ohio).

DeWine, who has remained silent about his position for the past several months, said Tuesday that he is supportive of the general concepts of the compromise solution that Sens. Trent Lott (R-Miss.) and Nelson have been working on for the past few months.

“There’s a deal to be made there,” DeWine said. “I think that outline makes sense. … We’re in the ballpark there.”

McCain also appeared to endorse the concept. “I think there’s a deal that should be and could be made,” he said.

Nelson’s attempt is designed to shut down both the nuclear option and the current filibusters by getting six Senators from each side to sign a memorandum of understanding. The six Republicans would swear off support of the nuclear option, while six Democrats would vow to support cloture on ending filibusters for judicial nominees.

The final point of contention, Nelson says, is how many of the seven filibustered nominees would be approved.

While Nelson considers a deal to be close, Lott said the filibustered nominees are proving to be a major stumbling block. “You can’t do a deal — the six-by-six thing — unless you have a solution for the magnificent seven,” Lott said Tuesday.

In the meantime, leadership aides for Republicans and Democrats have dismissed the effort by Nelson as too little, too late.

Short of a last-minute compromise, the Senate seemed certain to see another round of Democratic filibusters begin next week or whenever Frist is forced to file his cloture motion to attempt to cut off the judicial filibuster.

Sen. Charles Schumer (D-N.Y.), a top Judiciary Committee member and the chairman of the Democratic Senatorial Campaign Committee, said he doesn’t expect votes to change on Owen or other filibustered nominees.

“We feel very strongly that these nominees don’t belong on the bench,” Schumer said.

The expected scenario for the showdown is that if Democrats continue to block cloture on nominees next week, Frist will ask for a ruling from Vice President Cheney that the debate on the nominee was “dilatory.”

The vice president, acting in his capacity as President of the Senate, has already indicated that he’ll support that ruling. Then, Frist would move to table a Democratic attempt to over-rule Cheney.

Senate Majority Whip Mitch McConnell (R-Ky.), who earlier this spring declared that Republicans had enough votes to do it, continued to predict an eventual victory if it comes to a floor vote.

“It has been my prediction that we will have the votes if this step is taken,” McConnell said.