Senators Pull an All-Nighter Over Judicial Confirmations

Times Staff Writer

Forcing the Senate's first all-night session in nine years, Republicans on Wednesday launched a 30-hour "talkathon" on judges to protest a Democratic blockade that has killed one of President Bush's judicial nominations this year and stalled three others.

Working in hourly shifts to hold the floor and guard against surprise maneuvers, senators from both sides of the aisle accused each other of being in thrall to ideological special interests.

The nonstop faceoff began at 6 p.m., when more than 30 GOP senators marched into the chamber in a show of solidarity for Bush's nominees. The debate plowed on early this morning and was projected to last until at least midnight tonight, and possibly extend to Friday. Cots were set up in rooms near the Senate floor for senators and aides to nap.

Near midnight Wednesday, Sen. Barbara Boxer (D-Calif.) accused Republicans of "whining ... complaining ... crying, crying" about their failure to attain a perfect record of confirming Bush nominees.

But Sen. Jon Kyl (R-Ariz.) said: "It is a solemn responsibility of the Senate to act on the president's nominees. We are not fulfilling that responsibility."

To show that their protest was more than partisan stagecraft, Republican leaders scheduled votes Friday on three nominees, including two Californians who will be getting their first tests before the full Senate: Los Angeles Superior Court Judge Carolyn B. Kuhl, nominated for the U.S. 9th Circuit Court of Appeals in San Francisco, and state Supreme Court Justice Janice Rogers Brown, nominated to the U.S. Court of Appeals for the District of Columbia Circuit.

Democrats predicted that they would block final action on both. Republicans, unsurprised, vowed to make their point and take their case to the public.

"Our goal is very simple: an up-or-down vote on the nominations," said Senate Majority Leader Bill Frist (R-Tenn.). "People can vote up or they can vote down. Just give us a vote."

Referring to the Senate's constitutional role to work with the president on judicial appointments, Frist challenged the Democrats: "Will we be denied our right to give advice and consent?"

Sen. Charles E. Schumer (D-N.Y.), a ringleader of the blockade, asserted that the debate would "boomerang" on Republicans when the public realized that the Senate had confirmed 168 Bush nominees for trial and appellate judgeships and blocked just four by filibuster.

"We have been reasonable," Schumer said. "We have been careful. We have been moderate."

Republicans, he said, will "not be content unless every single judge that the president nominates is rubber-stamped by this body."

The debate gave a preview of fireworks that could be expected the next time a vacancy opens up on the Supreme Court and the Senate is asked to confirm a nominee.

What is being challenged now, and what is certain to be questioned in any Supreme Court fight, is the power of a Senate minority to tie up the chamber.

Republican leaders signaled that they would force a showdown vote Friday on a rules change to gut the minority party's power to stop confirmation of judicial nominees through the tactic of endless debate known as the filibuster. The proposal would allow a simple majority of 51 senators to force final action, rather than the 60 now required to break a filibuster.

But it, too, faces a certain filibuster.

The Senate has 51 Republicans, 48 Democrats and one Democratic-leaning independent. The close partisan divide gives filibusters and filibuster threats added force.

At the White House, Bush spokesman Scott McClellan said: "It's unfortunate that some Senate Democrats have chosen to play politics with our nation's judiciary. There are positions that need to be filled."

Republicans often blocked action on judicial nominations during the Clinton presidency, bottling them up in committee or through the intervention of a single senator. But the GOP says that the Democratic use of the filibuster on the Senate floor against Bush's nominees is without precedent.

This year, Democrats have sustained four filibusters against Bush nominees for appellate courts, leading one -- Miguel A. Estrada, a Washington, D.C., attorney born in Honduras -- to withdraw in frustration. The others were Texas Supreme Court Justice Priscilla R. Owen, U.S. District Judge Charles W. Pickering Sr. of Mississippi and Alabama Atty. Gen. William H. Pryor Jr. Next up are Kuhl, who has been waiting for a vote since June 2001, and Brown, nominated this July.

"The Democrats are attempting to change 200 years of history," Frist charged. "That simply can't be tolerated."

Democrats replied that senators have frequently filibustered judicial nominees in recent years. They noted that President Lyndon B. Johnson's nomination of Supreme Court Justice Abe Fortas to be the court's chief justice was withdrawn in 1968 after Fortas failed to win a vote to force final Senate action.

As recently as March 2000, several Republicans voted to filibuster two Californians whom President Clinton had named to the 9th Circuit appellate court: Richard A. Paez and Marsha L. Berzon. Paez had waited more than four years for a final vote, a record delay. Ultimately, the Republican stalling tactics failed, and both jurists now sit on the appellate court.

Behind the tussle over arcane Senate rules and history was a fierce ideological struggle.

Democrats claimed that Bush was attempting to tilt the courts too far to the right, refusing to consult with the Senate minority while promoting nominees who they said would undermine environmental protections, abortion rights, worker rights and civil rights.

"I deeply believe that the [2000] election provided no mandate to skew the courts," Sen. Dianne Feinstein (D-Calif.) said.

Republicans, though, maintained that Democrats were smearing qualified nominees simply because they hold conservative viewpoints akin to those of the president.

Hours before the debate began, folding cots were wheeled into the Strom Thurmond Room, steps away from the Capitol Rotunda. The room was, perhaps, an appropriate place for Republicans to nap: It was named for the senator from South Carolina who won renown in 1957 for setting the record for a one-man filibuster: 24 hours, 18 minutes. Then a Democrat, Thurmond retired from the Senate a Republican.

Democrats said they planned to sleep on couches in Capitol hideaways.

It was the first time since a campaign finance debate in 1994 that the Senate was expected to be in session throughout the night.

The chairman of the Senate Judiciary Committee, a leading player in the controversy, was already losing his voice hours before the debate began.

"Laryngitis," Sen. Orrin G. Hatch (R-Utah) lamented. "A fine day to have that."

Yet Hatch appeared on the floor and gave a sharp, emphatic speech, insisting that the Constitution does not require a "supermajority" for judicial confirmations -- a reference to the 60 votes needed to stop a filibuster.

"We should be voting on judges tonight -- not debating judges," he said.

Democrats belittled the Republican protest. Senate Minority Leader Tom Daschle (D-S.D.) called it "a colossal waste of time."

Instead of worrying about four blocked nominees who already have jobs, Daschle said, the Senate should talk about millions of jobs lost during the Bush administration.

Countering Republican attempts to bring judicial nominees to a final vote, Democrats sought to bring up their own priority bills during the debate--such as an extension of unemployment benefits. Like the Republicans, they failed.

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