Judgeship Confirmation Line Grows

The tally of controversial nominees for federal judgeships awaiting Senate confirmation grew to five Thursday as the chamber’s Judiciary Committee voted along party lines to approve President Bush’s nomination of William H. Pryor Jr. to an appellate court.

One of the five nominees on the Senate’s confirmation list is expected to trigger a showdown next week that could result in the “nuclear option” -- the GOP plan to take away use of the filibuster to block votes on judicial nominees.

As the confrontation neared, the atmosphere in the Senate grew more heated Thursday, with Sen. Robert C. Byrd (D-W.Va.) challenging Majority Leader Bill Frist (R-Tenn.) to explain why it violated the Constitution to filibuster judicial nominees.

“Here is my guide, the Constitution of the United States,” Byrd said, waving a booklet containing the Constitution. “What does it say? Does it say that each nominee shall have an up-or-down vote? Does it say that?”

Frist acknowledged that it did not, but argued that the “advise and consent” provision of the Constitution suggested the Senate should conduct a confirmation vote on each of the president’s nominees.

To win confirmation, a nominee requires a simple majority in the 100-seat Senate -- 51 votes. But it takes 60 votes to end a filibuster. There are 55 Republicans in the Senate, 44 Democrats and one independent who usually sides with Democrats.

Byrd, in responding to Frist, argued that the Senate fulfilled its duty when the threat of a filibuster was used to block 10 of Bush’s judicial nominees in his first term.

Byrd also noted that the Senate declined to act on more than 60 of President Clinton’s nominations.

“They were not given an up-or-down [confirmation] vote, so the Senate did not give its consent,” Byrd said. “So what’s the difference?”

Behind the scenes, talks on defusing the conflict continued between Frist and Minority Leader Harry Reid of Nevada, and among moderates in both parties.

Sen. Ben Nelson (D-Neb.) reported progress on a compromise under which six Republican senators and six Democrats -- enough to deny either party a majority -- would band together to stop a showdown over the filibuster by refusing to vote with their side.

The Democrats would pledge to vote with Republicans to end any judicial filibusters. The Republicans would pledge to vote against banning the filibuster for judicial nominees.

Nelson spokesman David DiMartino said that if the agreement was reached, GOP Senate leaders would be told that they did not “have the votes for the ‘nuclear option,’ ” and Democratic leaders would be informed that they did not “have the votes to maintain the filibuster, except in extreme cases.”

Nelson’s discussions are taking place with Frist’s blessing, even though the GOP leader has said he is unwilling to accept any compromise that leaves open the possibility of a Democratic filibuster of future judicial nominations, especially one for the Supreme Court.

Reid offered again to smooth the way for Republicans to proceed with votes on some of Bush’s judicial nominees if Republicans would scrap plans to change the filibuster rules.

Reid’s plan included allowing a vote on one of the controversial picks pending before the Senate -- Thomas B. Griffith, whom Bush nominated to serve on the Circuit Court of Appeals for the District of Columbia.

“So once again I say to my Republican colleagues: Do you want to confirm judges or do you want to provoke a fight?” Reid asked.

Frist is expected to press for a Senate vote next week on a judicial nominee who would spark a confrontation with Democrats over the filibuster.

His most likely picks are considered to be California Supreme Court Justice Janice Rogers Brown or Texas Supreme Court Justice Priscilla R. Owen.

Democrats say they would filibuster either one, denouncing both as conservative ideologues.

At Thursday’s Judiciary Committee hearing on Pryor’s nomination to the 11th Circuit Court of Appeals in Atlanta, Democrats criticized him in similar terms.

Sen. Edward M. Kennedy (D-Mass.) charged that Pryor did not “have the open-mindedness and fairness needed to be a federal judge.”

Republicans rejected such attacks as unfair. All 10 of the panel’s GOP members voted for Pryor; all eight Democrats on the committee voted against him.

Pryor was nominated to the federal bench by Bush during the president’s first term. Democrats blocked him through a filibuster.

Bush circumvented Congress by appointing Pryor to the appellate court in Atlanta during a recess last year; that temporary term will expire at the end of the year unless he is confirmed.