With time running out, a small group of lawmakers said on Thursday they were inching toward a deal to avert a historic Senate confrontation that could strip Democrats of their power to block President Bush’s most conservative judicial nominees.
Following a week of mixed signals, members of this group of about a dozen largely moderate senators voiced guarded optimism and vowed to keep trying, possibly right up to climactic votes next week. Talks broke up late on Thursday, and were to resume on Monday.
Senate Majority Leader Bill Frist, a Tennessee Republican, is set to force a showdown Tuesday and likely seek a vote to abolish use of procedural roadblocks known as filibusters against candidates for federal courts — including the Supreme Court. With a handful of Republicans undeclared, it is not certain that Frist will prevail.
But Democrats, angry at what they see as an erosion of the power of the minority party to sway events in the Senate, say if the judicial filibuster is abolished, they will retaliate and create obstacles for many of Bush’s legislative priorities.
Despite the slow pace of negotiations, participants said too much was at stake to give up.
“Getting close,” said Sen. Ben Nelson, a Nebraska Democrat who has led this last-ditch effort with Sen. John McCain, an Arizona Republican.
“We’re making progress, but we’re making progress by inches, rather than by miles,” said Maine Republican Susan Collins, adding, “We need to get everyone to a certain comfort level.”
The framework being discussed, while still in flux, would clear the way for confirmation of five of Bush’s contested judges and block three others. It would also attempt to roll back some of the partisan threats and tensions that have surrounded the judicial confirmation process.
Sen. Robert Byrd, the long-serving West Virginia Democrat, said he had put forth the idea of depoliticizing the process by having judges and scholars come up with a pool of potential nominees. A president would not have to draw from the pool, but could consider them.
During these negotiations, Democrats have sought a Republican pledge to preserve the judicial filibuster through 2006. In exchange, the centrist Democrats said they would not back a filibuster except in extreme circumstances. Getting language acceptable to both sides has been a challenge.
Republican leaders insist they will have the needed 51 votes in the 100-member Senate to abolish filibusters against candidates for circuit court and U.S. Supreme Court.
While the negotiations played out behind closed doors, the Senate debate raged on amid dueling news conferences and an avalanche of political advertising from the political right and left.
“We’ve been debating a very simple principle: nominees deserve a fair up-or-down vote on the floor of the United States Senate,” Frist said.
Senate Minority Leader Harry Reid, a Nevada Democrat, said: “The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give presidential nominees ‘an up-or-down vote.”‘
Republicans said the Constitution does not guarantee lawmakers the right to filibuster, and accused Democrats of unprecedented obstructionism in use of the tactic.
Democrats counter that Republicans had bottled up more than 60 of former President Bill Clinton’s nominees and ignored many traditional bipartisan consultations that could have prevented these clashes.
A simple majority is needed to pass legislation or confirm nominees. Yet 60 votes, a supermajority, are needed to end a filibuster.
Filibusters, or at least the threat of them, have long been used in the Senate to halt or force compromise on legislation.
But filibusters rarely factored in judicial nominees until Bush took office in 2001. During Bush’s first term, Democrats blocked 10 of his circuit court nominees, while helping confirm about 200 others, mostly to lower courts.
Bush renominated seven of those nominees after his re-election, setting the stage for this confrontation. The showdown next week will center on the renomination of Priscilla Owen, a Texas Supreme Court justice who Bush has sought for four years to put on the 5th U.S. Circuit Court of Appeals.
(Additional reporting by Richard Cowan)
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