Votes on Judgeships Move Senate Closer to Going ‘Nuclear’

Times Staff Writer

The Senate moved closer Thursday to a constitutional confrontation over how to choose federal judges after a committee approved two of President Bush’s controversial judicial nominees.

In the coming days, Republican leaders are expected to decide whether to bring one of those nominees up for a floor vote. Members of both parties say scheduling a vote would trigger a parliamentary battle so potentially explosive that it has become known as the “nuclear option.”

Democrats plan to filibuster either of the nominees -- one of them a Californian, state Supreme Court Justice Janice Rogers Brown. Republicans say they would retaliate by trying to change the rules of the Senate to bar use of the filibuster to oppose judicial nominations.

In response, Democrats say they would bring much of the chamber’s work to a halt.


Republican leaders signaled that the conflict could come to a head soon, perhaps as early as next week. The decision belongs to Senate Majority Leader Bill Frist (R-Tenn.), who will decide when to place the judges on the Senate agenda.

On Thursday, the Senate Judiciary Committee voted along party lines to approve the nominations of Rogers Brown and Priscilla Owen, a member of the Texas Supreme Court, to the federal appellate bench. All 10 committee Republicans voted for the pair; all eight Democrats on the panel, including California’s Dianne Feinstein, voted against them.

Democrats accuse both judges of being extremists and judicial activists whose legal decisions are based more on conservative ideologies than the merits of cases.

The Democrats said that in speeches and court decisions, Rogers Brown expressed hostility toward government programs and ordinary business regulation, describing local zoning laws as “thievery” and seniors on Social Security as people who “blithely cannibalize their grandchildren.”


Feinstein said: “In my days on this committee, I have never seen a nominee who expresses such extreme views, views that are clearly out of the mainstream of American thought.”

Relying on a frequent Republican charge about federal judges, Sen. Patrick J. Leahy (D-Vt.) accused Owen of being “willing and sometimes eager to make law from the bench.”

Eager to pass the nominees out of the committee, Republicans largely kept quiet. One exception was Sen. Sam Brownback (R-Kan.), who rose to Owen’s defense.

“I think this is the type of judge we’re looking for,” he said.


Brownback argued that her decisions to deny abortions to 10 out of 13 minors seeking her approval without parental notification was consistent with the intent of the Texas law. Brownback said that under that law, bypassing parents was supposed to be the exception, not the rule.

“When I was in law school, we were taught that we’re supposed to look at legislative intent, and that’s what this judge is doing,” he said.

At least some GOP senators have expressed reservations about barring the use of filibusters in the judicial confirmation process, and it is not clear whether Frist can count on the 50 Republican votes he would need to make the change. In case of a 50-50 deadlock on the issue, the Senate president, Vice President Dick Cheney, would break the tie.

After Thursday’s committee votes, the panel’s chairman, Sen. Arlen Specter (R-Pa.), took to the Senate floor to plead with his colleagues to set aside partisanship and strive for compromise on the dispute.


“If we fail [to avoid the conflict], then I fear that this Senate will descend the staircase of political gamesmanship and division,” Specter said, adding that he had not yet taken a position on the filibuster change

The Judiciary Committee’s votes on Rogers Brown and Owen were, in a sense, a replay. Bush had nominated them to the federal bench in his first term, and the panel had approved them on party-line votes.

Democrats responded by blocking both nominations on the floor by using the filibuster, a parliamentary tactic in which a minority can stall a vote indefinitely by refusing to close debate. Sixty votes are needed to end debate; Republicans have 55 Senate members.

Bush resubmitted his nominations of Rogers Brown and Owen this year.


And Republicans, frustrated by the Democratic filibusters, have vowed to change the rules to end debate on judicial nominations with a simple majority of 51 votes.

Democrats say that would violate the intent of the Constitution, in which the Founding Fathers created the Senate to be a forum where minority views would be heard and where an emphasis would be placed on reaching decisions by consensus. They also complain that Bush has violated precedents by refusing to confer with the minority party in choosing nominees, and in renominating judges who had been rejected.

Referring to Rogers Brown and Owen, Sen. Charles E. Schumer (D-N.Y.) said, “You could not find two nominees who better illustrate how we were right not to approve them last time.”

Republicans accuse Democrats of breaking centuries of tradition by using the filibuster against nominees to the federal bench, exercising what is effectively a veto on the president’s right to make appointments.


“We bend over backward to protect minority views in this Senate, but eventually majority has to rule,” Sen. Norm Coleman (R-Minn.) said.

Frist is under strong pressure from members of his party, especially social conservatives, to press ahead on preventing filibusters of judicial nominees. Those conservatives now form the Republican Party’s organizing base, and they have bristled at judges who have ruled against prayer in schools and in favor of abortion rights and gay marriage.

The White House has been keeping a low profile as the filibuster issue has gained steam.

The president did not discuss judicial confirmations or Senate filibusters in his public appearances Thursday, and White House spokeswoman Erin Healy said Bush had not taken a position on whether the Senate should change its rules.


“That’s a matter for the Senate to work out,” Healy said. But she said Bush expected some kind of resolution that would allow votes on his nominees.

“The president’s been very clear about calling for an up-or-down vote on all of his nominees,” Healy said. “The president feels it is his responsibility to put forward well-qualified and well-respected nominees, and it is the Senate’s responsibility to vote on those nominees.”

The filibuster issue is a rallying cry for activists on the right and the left.

Liberal advocacy groups have been running TV ads for weeks accusing the GOP of trying to make a power grab by removing the judicial filibuster. Conservative groups are following suit.


Grover Norquist, who heads Americans for Tax Reform and runs a weekly meeting of conservative activists in Washington, said the 200 conservative leaders who attend are mobilizing their members.

“It’s huge,” he said. Changing the filibuster rules “comes up at every meeting now and it is a unifying issue” for the right.

In an attempt to force Republicans to back down, Democrats are trying to play different blocs of GOP allies off each other.

On Thursday, two Senate Democrats released a letter they sent a day earlier to key business leaders warning that legislation sought by the business community would be blocked if the conflict over judges goes “nuclear.”


“The Republican leadership faces a fundamental choice -- whether to foster the kind of bipartisanship necessary for a productive legislative session or pursue a partisan agenda that will poison the atmosphere of the Senate,” wrote Sens. Thomas R. Carper (D-Del.) and Herb Kohl (D-Wis.).

“The business community also faces a choice -- either speak out against the nuclear option or stand by while the majority undermines our desire to work together and develop common-sense solutions to America’s problems,” they wrote.


Times staff writers Mary Curtius, Tom Hamburger and Warren Vieth contributed to this report.