Moderates Fail to Avert Senate Fight

Moderate Democrats and Republicans failed Tuesday to derail a confrontation over federal judgeships that both sides said would begin playing out today on the floor of the Senate.

Republican leaders said they would start the day’s Senate session by opening debate on President Bush’s nomination of Texas Supreme Court Justice Priscilla R. Owen to the federal appeals court in New Orleans.

The nomination of California Supreme Court Justice Janice Rogers Brown to the federal appeals court in the District of Columbia also will be discussed in the coming days, but Republicans have decided to focus on Owen in their dispute with Democrats over judicial nominees.

Democrats previously used filibusters to block the nominations of Owen and Brown and had said they would seek to do so again, setting the stage for the Senate showdown.

Bush turned up the heat on the issue, saying Tuesday night that senators have “a duty to promptly consider each of these nominees on the Senate floor, discuss and debate their qualifications, and then give them the up-or-down vote they deserve” rather than filibuster them.

Bush’s remarks to 1,500 people attending a Republican Party fundraising gala represented an escalation of the administration’s campaign to pressure the Senate to act. The White House has operated largely behind the scenes, allowing Senate GOP leaders to take the lead in marshaling support for Bush’s nominees.

In the hours before the parliamentary battle was to begin, the spotlight shone on a dozen centrists from both parties who discussed a potential compromise to defuse the dispute.

After an hour and a half of discussions that included Senate Majority Leader Bill Frist (R-Tenn.) and Minority Leader Harry Reid (D-Nev.), the meeting broke up with no progress reported.

Republicans, including some of the centrists, have said they would accept no deal in which Democrats retain the right to filibuster. Democrats say they would not take part in a compromise in which they give up that right.

The lead Democrat in the effort, Sen. Ben Nelson of Nebraska, told reporters that talks would continue.

“Every time you talk, you gain ground, you don’t lose ground,” Nelson said.

The confrontation has been building for years as each party has used various methods to thwart the other party’s nominations to the federal courts.

In recent years, Democrats used the filibuster -- in which a senator uses extended debate as a stalling tactic -- to block votes on 10 of Bush’s nominations to federal appellate courts. Democrats argued that those judges were conservative ideologues.

Currently, 60 votes are needed to end a filibuster and force a confirmation vote; Republicans want to lower the threshold to 51 votes for judicial nominees.

The move is known as the “nuclear option” because of its potential to bitterly divide the Senate. Democrats have threatened to stall much of the Senate’s work if the rule change passes.

“I really think people on both sides don’t want this to happen,” said Sen. Joe Lieberman (D-Conn.), one of those working for a compromise. “Members on both sides don’t want the explosion to occur.”

The proposed compromise, brokered by Nelson and Sen. John McCain (R-Ariz.), would be a pact between six Republicans and six Democrats to vote to end filibusters of the stalled judicial nominees but also oppose any change in the rules permitting such filibusters. Republicans hold 55 seats in the 100-member Senate, so six GOP defectors would be enough to deny Frist a majority vote on the filibuster issue.

Owen and Brown, the two judges at the heart of the Republican campaign against the filibuster, were in Washington on Tuesday.

They had lunch at the White House with Bush’s chief counsel, Harriet Miers, dropped by the Oval Office for a visit with Bush and then made a carefully orchestrated appearance on Capitol Hill.

“We believe they have waited too long for that simple up-or-down vote,” Frist said during a photo opportunity at his office, with the two judges sitting between him and Majority Whip Mitch McConnell (R-Ky.).

Neither Frist nor the judges answered questions.

The confrontation is expected to play out in stages over the coming week and culminate early next week.

In the first stage, the Senate is expected to formally open debate on the nomination of Owen. Senators are also expected to discuss Brown’s nomination.

In choosing to highlight Owen and Brown, Frist passed over several male nominees who were approved earlier by the Judiciary Committee. Republican insiders say Owen and Brown are considered more sympathetic figures over which to wage the battle.

Owen is a favorite among abortion opponents and religious conservatives because of several legal opinions she wrote denying minors the right to an abortion without parental notification. Brown, who is African American, is considered more likely to attract the support of independents and Republican moderates.

A senior Frist aide said that Brown’s nomination would move to the Senate floor after confirmation votes for Owen and John R. Bolton, the president’s nominee for U.N. ambassador. As a result, Brown’s confirmation battle is unlikely to reach the Senate floor until after Memorial Day.

The aide spoke on condition of anonymity because the scenario was preliminary.

The second stage is expected to begin Friday, the aide said, when Republicans will file a motion to end debate on Owen. Two days later, the Senate will vote on the motion, known as cloture, which requires 60 votes.

Republicans, who hold 55 seats, are expected to lose that vote, at which point Frist will begin the climactic chapter, his aide said. With Vice President Dick Cheney presiding as president of the Senate, Frist will make a motion suggesting that senators should have the right to vote on judicial nominees after a certain number of hours of debate has passed.

Cheney is expected to uphold the motion, and Democrats are expected to object. The chamber would then vote on whether to table, or reject, the Democratic appeal. All those votes require a simple majority, the aide said, and Cheney could break a tie.

Frist’s motion would establish a precedent, his aide said, under which all judicial nominations would get a vote after a certain amount of debate, and confirmation would require 51 votes. The precedent would apply to all federal judges, including U.S. Supreme Court justices.

Some senators and their staff were on edge over the filibuster issue. Senate Chaplain Barry Black made a passing reference to the dispute, opening the chamber’s session Tuesday with the famous words: “A House divided against itself cannot stand.”

“I think there is a real dread as people march forward to this inevitable confrontation,” said Bill Ghent, an aide to Sen. Thomas R. Carper (D-Del.) “We don’t know what the long-standing implications are going to be for the Senate.”

Times staff writers Mary Curtius, Richard Simon, Edwin Chen and Warren Vieth contributed to this report.