Clock Ticks on Effort to Defuse Senate Battle

Times Staff Writer

Senate leaders hardened their stances Sunday in a bitter partisan showdown over judicial nominations, while moderates warned that a meeting today offered one final chance for compromise.

Republican leaders said they were not inclined to postpone a vote, scheduled for Tuesday, on the nomination of Texas Supreme Court Justice Priscilla R. Owen to the U.S. 5th Circuit Court of Appeals in New Orleans.

Unless moderate Democrats and Republicans reach their own compromise, that vote is expected to set off a chain reaction that Democrats describe as a constitutional crisis.


It takes a simple majority of senators to confirm a judicial candidate, and Republicans hold 55 of the Senate’s 100 seats. But last year, Senate Democrats halted action on 10 appellate court nominees, including Owen, by threatening a filibuster -- a stalling tactic in which a minority refuses to end debate. Ending a filibuster takes 60 votes, five more than the Republicans hold.

If a vote to end debate fails Tuesday, Majority Leader Bill Frist (R-Tenn.) plans to invoke what has become known as the “nuclear option” -- because of the partisan discord that would result -- and introduce a rules change that would end the filibuster for judicial nominations.

Such a move, Democrats say, would end a historical safeguard and transfer unprecedented power to the president. Republicans say the filibuster has never been successfully used to block a judicial nominee who had the support of a majority of senators.

That has left six Democrats and six Republicans scrambling for a compromise. A meeting of Senate moderates offers one last chance, said Sen. John McCain (R-Ariz.).

“We’ll be meeting again tomorrow and that’ll be our last opportunity,” McCain said on “Fox News Sunday.”

The group is discussing a draft agreement under which Democrats would pledge not to use the filibuster in the future except under “extraordinary circumstances.” In return, Republicans would pledge not to vote in favor of changing the filibuster rule, unless at some point they thought the Democrats had violated the spirit of the agreement.


Under the draft plan, five of seven Bush nominees to the federal appellate courts would be given up-or-down confirmation votes.

Bridging the ideological divide has proved a nettlesome task. “We’re having difficulty coming up with exact language which would portray that desire. It’s tough,” McCain said on Fox.

One of the Democrats in the group, Sen. Ben Nelson of Nebraska, concurred with McCain’s assessment. “When you have 12 senators ... you have 14 opinions,” he said.

Although he is optimistic that agreement can be reached, “it’s very hard to handicap it at this point in time,” Nelson told CNN’s “Late Edition.”

On the same program, Sen. Lindsey Graham (R-S.C.) said he was holding out hope for a compromise. “We’re all grown men and women. And we’re behaving like we’re in the third grade,” he said.

“It is very doable if people of good faith will come together,” Graham said. “We’re running out of time. We’ve got to do it [today] or Tuesday morning or we’re going to be out of time.”

Though some Republicans, including McCain, have said that they oppose altering Senate tradition, Majority Whip Mitch McConnell (R-Ky.) told CBS’ “Face the Nation” that he had the simple majority needed to change the rules.

“Let’s get back to the way the Senate operated for over 200 years, up-or-down votes on the president’s nominee, no matter who the president is, no matter who’s in control of the Senate,” he said.

In any case, the rancorous vote could cost the Republicans more than heightened partisan tension. Graham predicted that of the judges in dispute, “at least one would be rejected” by a bipartisan majority. He declined to name that nominee.

Democrats who oppose Owen and a handful of other nominees, calling them “extremists,” used the filibuster threat to block 10 of Bush’s appellate court nominees during the president’s first term. Bush renominated seven of them, including Owen and California Supreme Court Justice Janice Rogers Brown.

In a commencement address Sunday, Senate Minority Leader Harry Reid (D-Nev.) warned that removing the minority’s ability to block such nominees would destroy a time-honored tradition of bipartisanship that distinguished the Senate from the more rancorous House.

“That contempt for the rule of law and the law of rules will set a new precedent -- an illegal precedent -- that will always remain on the pages of Senate history,” Reid told graduates of George Washington University’s law school. “We need to withdraw from the precipice and forge a bipartisan compromise to resolve this matter.”

If the rules change is approved, Democrats have threatened to use parliamentary procedures to slow down a Congress that only one in three Americans says is doing a good job, according to recent polls.

Perhaps wary of that, Senate Minority Whip Richard J. Durbin (D-Ill.) noted that the Democrats would not stop all action on Capitol Hill.

“The Democrats will not shut the Senate down. We will not shut the government down,” Durbin said on “Face the Nation.”

“Important appropriations bills and bills for our troops, national security and homeland security, will continue,” Durbin said. “But unfortunately, we will have lost a lot.... And unfortunately, it means we’re going to have to take a different approach.”