The Senate is torn between confrontation and compromise when it comes to President Bush’s judicial nominees and its own filibuster rules, the tug of party loyalty up against high-minded talk of the Constitution and trust among senators.
Whatever the outcome, the future makeup of the Supreme Court is at stake. The dispute, expected to play out in the coming days, is “a culmination of a power struggle between Republicans and Democrats as to which party can control the judicial selection process through partisan maneuvering,” says Sen. Arlen Specter, chairman of the Senate Judiciary Committee.
As in many long-running disputes, political or otherwise, each side nurses its own set of grievances.
Majority Republicans have made Texas Supreme Court Justice Priscilla Owen a test case in the larger struggle and routinely attack Democrats for blocking a final vote on her nomination for four years.
“The new requirement that this partisan minority is now imposing that nominees won’t be confirmed without the support of 60 senators is, by their own admission, wholly unprecedented in Senate history,’ said Sen. John Cornyn, R-Texas.
Left unsaid by Republicans is that Bush picked Owen for a vacancy on the 5th Circuit Court of Appeals that President Clinton twice tried to fill.
Republicans, who also controlled the Senate then, refused a hearing for both of the former president’s selections. Their nominations withered in the Senate Judiciary Committee.
Fresh from a four-seat gain in the 2004 elections, Senate Majority Leader Bill Frist, R-Tenn., and Republicans resolved to push harder for yes-or-no votes on Owen and several other of Bush’s stalled nominees.
Before dealing with Democrats and their new leader, Sen. Harry Reid of Nevada, they made sure Specter would not cause them difficulties if he became chairman of the Senate Judiciary Committee.
Under pressure from conservative senators and organizations alike, Specter publicly pledged he would not impose a litmus test on abortion rights for judges and would give Bush’s nominees quick hearings and push for their confirmation.
He also promised to fight Democratic filibusters and said he would not block legislation or a constitutional amendment in committee, “even one which I personally opposed.”
Frist, a presidential hopeful for 2008, then turned his attention to Democrats, who refused to allow votes on 10 appeals court judges during Bush’s first term. The president has renominated seven of them.
The GOP’s weapon of choice, in Senate-speak, is the “nuclear option,” a bid to change filibuster procedures that have been in the chamber’s rules for decades.
The Republican objective is to make it so a minority of the Senate no longer can block final votes on nominees to an appeals court or to Supreme Court.
It takes 60 votes among the 100 senators to stop a filibuster. But a mere majority can make the change that Republican leaders are seeking.
“I always would rather dance than fight,” Reid said on the day he won election as party leader. “But I know how to fight.”
In talks with Frist, Reid offered to clear the way for confirmation of some but not all of the nominees blocked previously _ without a guarantee on future Supreme Court appointees _ as long as Republicans pledged not to ban judicial filibusters.
That fell short of Frist’s insistence on a yes or no vote on each nominee.
Whatever their views on Owen, California Supreme Court Justice Janice Rogers Brown or the other stalled nominees, a self-appointed group of senators is at work trying to compromise where the two party leaders could not.
Some lawmakers, such as Sens. Robert C. Byrd, D-W.Va., and John Warner, R-Va., are longtime lawmakers who talk of the Senate’s unique place in the American system of checks and balances.
“I just look at this institution as really the last bastion of protecting the rights of the minority,” Warner said recently.
Another compromise-minded lawmaker, Arizona Sen. John McCain, stood up at a recent private meeting of fellow Republicans to urge a good faith agreement with Reid and the Democrats.
“Good faith is something we ought to talk about a little more in this chamber,” concurs Specter, who was involved in early discussions.
Among others participating in the compromise talks are Democratic Sens. Ben Nelson of Nebraska and Kent Conrad of North Dakota, both of whom are seeking re-election next year in states that Bush won handily in 2004. So, too, is Sen. Ken Salazar of Colorado, who won his seat last year after pledging not to participate in judicial filibusters.
The magic number for averting a showdown is 12, six senators from each party.
If six Democrats pledge not to block votes on future judicial nominees, that means the contested appointees would move ahead to a final vote. The votes of six Republicans are enough to make sure that current filibuster rules remain unchanged.
Frist and Reid monitor the discussions carefully.
“There are a few times a year in the House and a few more in the Senate where those of us who are involved don’t know what the outcome will be,” says Sen. John Sununu, R-N.H. “At these moments, everyone’s vote matters a great deal.”
David Espo is chief congressional correspondent for The Associated Press.