Bush Keeps Role in Senate Fray Out of Sight, Not Out of Mind

As a White House meeting was breaking up recently, a chipper President Bush sidled up to Vice President Dick Cheney and Vermont Sen. Patrick J. Leahy, who had just discovered a mutual interest in .50 caliber handguns.

“Guess what we have in common,” Leahy said to Bush.

“What -- you’re both bald?” Bush quipped.

Leahy, a liberal Democrat, saw that Bush was in good humor, and he sensed an opening. He pleaded with Bush to help resolve the bitterly partisan Senate impasse over his judicial nominations.

“We can settle this in an hour,” Leahy said, citing three other leading senators he thought could work together on an agreement. But Bush wouldn’t hear of it, the lawmaker said.

“Well, I hope you keep working on it, but I told [Reid] I was going to stay out of it,” the president said, referring to Senate Democratic leader Harry Reid of Nevada.

As his rebuff suggested, Bush has assumed a public posture of bystander as the Senate barrels toward a showdown that is likely to have repercussions far beyond the issue of whether every presidential appointment to the federal bench deserves an up-or-down vote.

Negotiations are underway this weekend to try to avert a collision over Senate Democrats’ use of filibusters, or extended debate, to block the confirmation of Bush’s judicial nominees they find objectionable.

Behind the scenes, however, the White House has become an active player. As recently as Tuesday, the vice president met privately with Republican senators to make the administration’s case for holding up-or-down votes on its judicial nominees. Tim Goeglein, the White House public liaison, regularly participates in conference calls and strategy sessions with outside groups seeking to pressure wavering GOP senators.

Other White House aides have been involved, such as Candi Wolff, head of the congressional liaison office, who last week shepherded Texas Supreme Court Justice Priscilla R. Owen and California Supreme Court Justice Janice Rogers Brown around Capitol Hill for meetings and photo opportunities. Brown and Owen are the most visible of Bush’s judicial nominees who were blocked by filibusters in the last Congress.

Bush’s strategy reflects a delicate balance that he and his strategists must maintain in the high-stakes effort to overcome Democratic opposition to some of his judicial nominees. Democrats have said they have filibustered a small number of Bush’s judicial nominees because they find them to be extremists and judicial activists. They have accused the targeted nominees of relying more on conservative ideologies than the merits of the case in formulating their legal decisions.

As much as the president wants to see his nominees confirmed, the White House must guard against heavy-handed tactics that could offend senatorial sensitivities. “They are wisely leaving the Senate to debate its own rules,” said Sen. Gordon H. Smith (R-Ore.). “To lobby us would be counterproductive.”

For instance, Sen. Susan Collins (R-Maine), an independent-minded moderate who often is the target of heavy lobbying from the White House, has not heard from White House aides on the filibuster issue. “Rightly or not, senators are jealous of their prerogatives,” she said.

Paul M. Weyrich, a conservative activist with ties to the White House, said: “Basically what the president is saying is, ‘I really need these judges confirmed. How you work that out is up to you.’

Still, Bush and his activist Republican base can ill afford a loss on such a high-profile matter at a time when some of his second-term priorities, such as Social Security restructuring, are struggling in Congress.

“The White House and the Republicans need a victory here because it’s been a tough few months for the president legislatively,” said Stephen Moore, president of the Free Enterprise Fund, a conservative advocacy group.

The extent of the White House involvement in the controversy is difficult to assess since such activities take place out of the limelight. But, as Moore put it: “There’s no question that the resources of the White House strategy team and legislative team are being fully engaged in this fight. It’s being driven from the very top.”

One example came late last week during compromise negotiations among a dozen senators from both parties. When Sen. Robert C. Byrd (D-W.Va.) proposed greater consultation between the White House and the Senate before judicial nominations are made, the White House quashed that notion, a Republican congressional staffer with knowledge of the discussions said.

For the most part, the White House has exercised its influence indirectly, working through allies and surrogates, such as Sen. John Cornyn (R-Texas), a former Texas judge and attorney general, and C. Boyden Gray, White House counsel during the administration of Bush’s father, President George H.W. Bush.

Three years ago, Gray assembled a coordinating group to build public support on behalf of Bush’s judicial nominees. In addition to Gray, who heads an advocacy group called Committee for Justice, the coordinating council consists of Jay Sekulow, chief counsel of the American Center for Law and Justice; Leonard Leo, executive vice president of the Federalist Society; and Edwin Meese III, attorney general under the Reagan administration.

Gray and the other members hold a conference call on Monday mornings with players in the confirmation battle to help determine strategy, at times including White House staff. Republican National Committee Chairman Ken Mehlman, who managed Bush’s 2004 reelection campaign, conducts a similar call on Tuesdays to coordinate strategy.

Gray said he set up his group in 2002 at the request of then-Senate Majority Leader Trent Lott (R-Miss.), who was becoming increasingly concerned about the potential use of filibusters to block judicial nominees.

Gray said the White House had become more engaged in working with his group and others since Bush’s reelection in November, partly out of fear that a Senate filibuster could be used to block a Supreme Court nominee. Chief Justice William H. Rehnquist, 80, was diagnosed with thyroid cancer last fall and is expected to retire this year.

Although the White House wants up-or-down votes on its nominees, Gray said, “the push for this has really come more from the Senate.”

It takes 60 votes to break a filibuster. The current Senate has 55 Republicans and 44 Democrats, plus one independent, who usually sides with the minority. That gives the GOP enough votes to win a simple majority but not enough to stop a filibuster.

One of the outside groups involved in the filibuster issue is Progress for America, which has close ties to Bush advisor Karl Rove and is assisting the White House on four key second-term priorities: judicial nominations, Social Security, tax-code restructuring and tort reform.

Until the filibuster controversy escalated in recent weeks, the conservative advocacy group had been devoting most of its resources to Bush’s Social Security initiative, Executive Director Chris Meyers said. But in the last month, Progress for America has spent $3.6 million to promote Bush’s judicial nominees.

The role of the White House in the Senate filibuster debate is a sensitive matter. In mid-April, Minority Leader Reid met with Bush and said afterward that the president had told him he would not get involved.

Days later, Cheney declared in a speech that he would support changing the Senate rule if a tie on the floor gave him the opportunity to cast a tie-breaker.

Reid accused Bush of “not being honest,” saying that Cheney’s remarks amounted to proof that “the White House is encouraging this raw abuse of power.”

But White House counselor Dan Bartlett rejected that accusation. “The White House is not involved,” he said Thursday.

Most Republicans blame the impending showdown on Senate Democrats, arguing that the president has a right to up-or-down floor votes on his nominees.

Even so, Sen. Mel Martinez (R-Fla.), Bush’s former secretary of Housing and Urban Development, acknowledged that it was the president who started the fight. “He proposed the judges,” Martinez said.