High Court Nomination May Prove a Deal-Breaker

The Republican and Democratic senators who in the spring negotiated a truce over judicial appointments appear at odds over what that agreement will mean for the upcoming Supreme Court confirmation fight.

The group -- known as the Gang of 14 -- wields enormous influence over two pivotal questions: Will Democratic lawmakers use a filibuster to block President Bush’s nominee to succeed Justice Sandra Day O’Connor? And if they do, will Republicans resume the effort to prohibit filibusters against judicial appointments?

Senators from both parties say they hope that their deal will hold. But key Democrats in the group have suggested that they might support a filibuster if Bush chooses someone they consider an ideological judicial activist. In that event, some Republicans involved in the agreement have signaled that they would seek to ban the filibuster.

“Bush has made clear he’s going to nominate conservative judges, and that is his right,” said Sen. Joe Lieberman (D-Conn.), a member of the group. “The question is, does he give us conservative judges

That was the standard established under the group’s accord for permitting future filibusters of judicial appointees.

Sens. Lindsey Graham of South Carolina and John McCain of Arizona -- two of the deal’s Republican architects -- have indicated that they do not believe their May accord permits a filibuster based solely on an ideological disagreement.

In an interview, one Republican senator involved in the deal said: “If the filibusters are ginned up again because [Democrats say] someone is too conservative, I think ... we will certainly have the votes we need” to bar the use of the tactic. The senator asked not to be identified while discussing legislative strategy.

In order to block a Bush Supreme Court nominee without use of the filibuster, the Senate’s 44 Democrats and one independent would need to stand together and be joined by six of the chamber’s 55 Republicans.

But votes on some of Bush’s most disputed appellate court nominees indicate how difficult it would be to persuade six Republicans to vote against the president’s choice. No Republican voted against Bush’s nomination of Janice Rogers Brown to the U.S. Court of Appeals for the District of Columbia. One opposed the 5th Circuit Court appointment of Priscilla R. Owen. Three voted against William H. Pryor Jr. for the 11th Circuit. Democrats overwhelmingly opposed each nominee.

Under current Senate rules, the Democrats could use the filibuster to block Bush’s Supreme Court choice without any Republican support. Throughout the chamber’s history, filibusters have allowed a minority to block legislation or a nomination with 41 votes.

Frustrated by Democratic filibusters against Brown, Pryor and Owens, the Senate’s Republican leadership earlier this year threatened to change the rules to prohibit filibusters against judicial nominations.

The May agreement derailed that effort. The seven Republicans in the bipartisan group said they would oppose their leaders’ effort to ban filibusters; the seven Democrats agreed to allow votes on Pryor, Owen and Brown, and agreed to withhold support for filibusters against judicial nominees except in “extraordinary circumstances.”

If Bush’s nominee provokes an intense fight, the critical question would be how the 14 senators define the “extraordinary circumstances” that would allow Democrats to filibuster without violating their agreement.

Democrats in the group hope to avoid a filibuster of any court nominee, and have shied away from clarifying what they would consider a circumstance extraordinary enough to justify one.

“The 14 of us sat in each other’s offices for a week straight trying to hammer out this deal, and one thing is certain,” Sen. Mark Pryor (D-Ark.) said in a recent speech. “Each of us will know extraordinary circumstances if and when we see them.... And extraordinary circumstances will not be defined by outside groups.”

Still, several Democrats have said they might support a filibuster if they believe that Bush’s choice would let conservative ideology rather than legal precedent guide judicial decisions.

“If someone was committed to being a judicial activist, that would raise the question of ‘extraordinary circumstances,’ ” said Sen. Ben Nelson (D-Neb.), a leader of the group.

One aide said Nelson followed that principle in 2003, when he opposed the nomination of Victor J. Wolski to the U.S. Court of Federal Claims. Nelson opposed Wolski not because he was a libertarian, but because the nominee made it clear that he would apply his ideology on the bench, the aide said.

Similarly, Sen. Mary L. Landrieu (D-La.) believes that it would be an extraordinary circumstance if “a nominee’s political ideology clouds their interpretation of the law,” said spokesman Brian Richardson.

“The test for Sen. Landrieu is not whether or not a nominee’s personal beliefs are conservative or liberal, but if those beliefs overshadow his or her interpretation of the law,” Richardson said. Landrieu, he said, applied that standard when she voted to confirm Owen but not Brown.

Conversely, some of the leading Republicans in the deal have said disagreement with a candidate’s ideology would not meet the test to justify a filibuster.

Graham has been the most explicit. He told Fox News this week: “To me, it’d have to be a character problem, an ethics problem, some allegations about the qualification of the person -- not an ideological bent.”

Similarly, McCain last week told CNN that opposing a nominee because of his or her judicial philosophy would not “meet the bar of an ‘extraordinary circumstance.’ ”

None of the other five Republicans in the group has spelled out as clear a view of what might justify a filibuster.

But one said that most of the seven believed that “just saying someone is out of the mainstream according to [Democrats] is not an extraordinary circumstance.”

Many Democrats believe that even if Republicans have the votes, they risk a voter backlash if they try to bar the filibuster under the spotlight of a Supreme Court confirmation.

“It would play right into the Democrats’ hand strategically” for the Republicans “to be out there changing the rules when they don’t get their way so they can cater to their far right,” said Cornell Belcher, the Democratic National Committee’s pollster.