Jurists Picked for Showdown on Filibuster

Times Staff Writer

California Supreme Court Justice Janice Rogers Brown and a Texas judge were named Friday as the federal judicial nominees who will be considered by the Senate next week, a move expected to trigger a long-awaited showdown with Democrats.

The announcement Friday by Senate Majority Leader Bill Frist (R-Tenn.) propels Brown and Priscilla R. Owen, a justice on the Texas Supreme Court, to center stage of a political brawl that has gripped the Senate for weeks -- over use of the filibuster against a president’s picks for federal judgeships.

The tactic, a procedural move allowing unlimited debate, is the weapon of the weak in the Senate. Ending a filibuster requires 60 votes in the 100-seat chamber; winning confirmation requires a simple majority of 51.


Democrats relied on the filibuster threat to block President Bush’s nomination of Brown, Owen and eight others to federal appellate courts during his first term, saying the nominees were too conservative.

Earlier this year, Bush resubmitted seven of the nominees, including Brown and Owen.

Republicans say all the nominees deserve an up or down vote on the Senate floor. With Republicans holding 55 seats in the chamber, Bush’s choices would likely be confirmed.

Brown and Owen were among the resubmitted nominees whom Democrats have said they would again filibuster.

Republicans have responded by threatening to change the Senate’s rules to bar use of the filibuster against judicial nominees.

“It is time for 100 senators to decide the issue of fair up-or-down votes for judicial nominees after over two years of unprecedented obstructionism,” Frist said in a statement Friday.

In a response issued by his office, Senate Minority Leader Harry Reid of Nevada said he welcomed the debate.


“The time has come for Republican senators to decide whether they will abide by the rules of the Senate or break those rules for the first time in 217 years of American history,” the statement said. “It is time to say no to this abuse of power.”

The showdown on the issue is expected shortly after the Senate votes on a highway funding bill it has been debating. A vote on that bill is expected early next week, said Bob Stevenson, Frist’s spokesman.

Stevenson said Frist would then initiate a floor debate on Owen and Brown. The majority leader picked those two judges, he said, because they were “accomplished women with compelling life stories who have had distinguished careers and received very high recommendations from their peers and from the American Bar Assn.”

He also noted they had been elected to their positions by voters in their states.

Stevenson said that at some point, Frist would call up the nomination of one of the two, a move he said would then “initiate the discussion of the rules.”

He declined to say which nominee Frist would seek a vote on first.

In ads that have run in targeted states and nationally on cable television, both opponents and proponents of the filibuster rule have focused on Brown and Owen and on their records.

Brown is nominated to serve on the U.S. Circuit Court of Appeals for the District of Columbia; Owen is nominated to serve on the 5th Circuit Court of Appeals, based in New Orleans.


Brown has been compared by some to Supreme Court Justice Clarence Thomas. Like Thomas, she is an African American who grew up poor in the segregated South of the 1950s. Also like Thomas, she emerged as a conservative critic of affirmative action and government benefit programs in the 1980s.

She has been praised by conservatives and slammed by liberals for some of her speeches. Speaking at Pepperdine University in 1999, Brown disputed the doctrine of separation of church and state. She also questioned whether the Bill of Rights, including the 1st Amendment, applied to the states.

Owen, who received the highest score among her group when she took the Texas bar exam, has been characterized by her critics as an ultraconservative who bends her decisions to fit her political views, such as her opposition to abortion rights.

Critics have attacked her decisions for routinely favoring law firms, corporations and insurance companies in disputes with consumers.

Owen’s supporters say she is a distinguished jurist who interprets the law narrowly and has impeccable intellectual credentials.

The Republican push to eliminate use of the filibuster for judicial nominees has become known as the “nuclear option.”


Democrats have said that if the GOP succeeded, they would respond by slowing much of the Senate’s business.

The rule change would destroy the comity of the Senate and trample its traditions, Democrats say. They also argue it would damage the rights of the Senate’s minority party.

But in his statement Friday, Frist said the filibuster denied the Senate its constitutional duty to “advise and consent” on presidential nominees and “fundamentally disturbs the separation of powers between the branches.”

Frist’s announcement came even as the two parties continued to search for a compromise Friday.

Jim Manley, a spokesman for Reid, noted that the two Senate leaders were scheduled to get together Sunday night at a dinner Frist is hosting for several senators at his home.

In his announcement, Frist said he would seek a ruling from the Senate’s presiding officer on how long it was appropriate to debate judicial nominees.


He also promised Democrats that there would be a thorough debate on the filibuster issue before he called for the vote on a rule change.

Vice President Dick Cheney, in his capacity as president of the Senate, is expected to preside over that session in case his vote is needed to break a tie.