Compromise Reached, Senate Set to Vote on Judicial Nominee
By CARL HULSE, New York TimesMay 24, 2005
WASHINGTON, May 24 - The Senate convened today to take up the nomination of one of President Bush's appeals court nominees, a day after a bipartisan group of 14 senators struck a last-second agreement that defused - at least for now - a potentially explosive parliamentary showdown over eliminating Senate filibusters against judicial nominees.
Under a compromise reached Monday night by an assortment of moderates, mavericks and senior statesmen just as the Senate was headed into a climactic overnight debate on the filibuster, three previously blocked appeals court nominees - Janice Rogers Brown, William Pryor and Priscilla R. Owen - will get floor votes. No commitment was made on the fate of two others, William Myers and Henry Saad.
In addition, the seven Democrats in the deal vowed that they would filibuster future judicial nominees only under "extraordinary" circumstances. Their Republican counterparts promised to support no changes in Senate rules that would alter the filibuster rule, effectively denying the votes it would take to enact such a rules change.
With a vote on the first of the nominees, Judge Owen, scheduled for later today, Senators reassembled this morning to not only debate her qualifications, but give their views on the compromise reached Monday night. "We've got a chance to start over," Senator Lindsey Graham, Republican of South Carolina, one of the 14 who helped forge the agreement, said today. "That's why I voted to start over. And I hope we've learned our lesson."
Senator John McCain, the Arizona Republican who was a chief architect of the deal, said the negotiators had been motivated by a mutual desire to prevent lasting damage to the Senate from a rules change. Mr. McCain said the pact was hammered out in the "finest traditions of the Senate."
"We have kept the Republic," said Senator Robert C. Byrd, Democrat of West Virginia, who had fought the rules change as an abuse of Senate traditions.
And Senator Joseph I. Lieberman declared, "In a Senate that's become increasingly partisan and polarized, the bipartisan center held."
The judicial showdown that has preoccupied the Senate for weeks in bitter dispute was to many a foreshadowing of what might occur later this year, if there is a Supreme Court vacancy. Though the pact averted the imminent confrontation this week, it did not definitively resolve the issue of what might happen if Democrats now choose to block a Supreme Court nominee by filibuster.
There were varying interpretations of how Monday night's agreement might restrict lawmakers during what is anticipated to be a drawn-out battle.
On the one hand, Democrats view the pact as containing an understanding that would forbid the Republicans from trying to vanquish the filibuster in such an instance, while Republicans asserted last night that they could still move to change the rules if Democrats violated the agreement.
"If an individual senator believes in the future that a filibuster is taking place under something that's not extraordinary circumstances, we, of course, reserve the right to do what we could have done tomorrow," said Senator Mike DeWine, Republican of Ohio, another lawmaker instrumental in the compromise.
The Senate majority leader, Bill Frist, who had vowed to invoke what some have called the nuclear option to do away with judicial filibusters, said the agreement "has some good news, it has some disappointing news, and will require careful monitoring."
Dr. Frist and his allies portrayed the agreement as a positive step but noted that it still did not fully meet their requirement that all judicial nominees ultimately receive up-or-down votes. "This agreement announced tonight falls short of that principle," the majority leader said
He said "bad faith and bad behavior" would force him to bring back the nuclear option.
Senator Mitch McConnell of Kentucky, the No. 2 Republican, said, "The way I read it, all options are still available with the timing to be determined."
But Senator Harry Reid of Nevada, the Democratic leader, said the pact had resolved the long-running fight. From his perspective, Mr. Reid said, the rules change is "off the table."
Clearly euphoric and relieved, Mr. Reid said a message had been sent that "abuse of power will not be tolerated, and attempts to trample the Constitution and grab absolute control are over."
At the White House, Scott McClellan, the president's spokesman, said the administration shared the Senate Republican view that the new understanding was a positive action but did not resolve the entire issue.
"Nominees that have been waiting for a long time for an up-or-down vote are now going to get one," Mr. McClellan said. "That's progress. We will continue working to push for an up-or-down vote on all our nominees."
Leaders of some interest groups that had been deeply involved in the fight, seeing it as a proxy battle for a future Supreme Court vacancy, were clearly unhappy with the deal.
"While we had no interest in seeing the Senate break down, we are very disappointed with the decision to move these extremist nominees one step closer to confirmation," said Nan Aron, head of the Alliance for Justice, a liberal group.
Some conservative activists who had pushed for the Senate to ban the filibuster entirely said they had been betrayed by Republican moderates.
"Once again, moderate Republicans have taken the victory and thrown it overboard," said Paul Weyrich, a veteran conservative organizer, who predicted that conservatives voters would punish the party.
While Dr. Frist, a potential presidential contender in 2008, was not able to guarantee a vote on all the nominees, the fact that the side deal was orchestrated by other Republicans could spare him some fury of the conservatives who could train their anger on Mr. McCain and others.Mr. McCain said he expected that interest groups on both the left and right would be angry at the compromise.
"Think of all the money they are going to lose," he said, ducking into a car to head to the premiere of a film about his life, referring to the fund-raising operations that had sprung up around the judicial battle.
After thanking him on the Capitol steps for the "wonderful" deal, Senator Barbara Boxer, Democrat of California, acknowledged that Democrats had cleared the way for possible confirmation of three judges many in the party opposed. But Ms. Boxer said that others had been held off and she described the agreement as a "big victory" for Democrats.
The final agreement evoked emotional responses from some of the participants as they emerged from Mr. McCain's office shortly after 7 p.m. Many of them beamed, and one flashed a quiet thumbs up, as they trooped en masse from the Russell Office Building to the Capitol. Lawmakers split up to brief their respective leaders, then reconvened before television cameras to proudly describe their arrangement.
Democratic officials said an unwritten aspect of the pact was that two nominees not named in the deal - Brett M. Kavanaugh and William J. Haynes - would not be confirmed and would be turned aside either at the committee level or on the floor.
The compromise was achieved as the Senate was digging in for a floor fight Tuesday that both sides said could have led to a substantial disruption in Senate business as Democrats retaliated for what they described as an abuse of power by the Republicans.
As a result of the pact, the Senate is now expected to confirm Ms. Owen on Tuesday after it formally agrees to end debate on her nomination after more than four years.
But Republicans also want to advance another contentious nomination before the end of the week, that of John R. Bolton to be ambassador to the United Nations.
Early Monday, Dr. Frist said that in the absence of an acceptable deal, the majority could no longer allow Democrats to prevent floor votes on Mr. Bush's choices for federal appeals courts.
"The moment draws closer," Dr. Frist said, "when all 100 senators must decide a basic question of principle: whether to restore the precedent of a fair up-or-down vote for judicial nominees on this floor or to enshrine a new tyranny of the minority into the Senate rules forever."
And Mr. Bush weighed in as well, saying the public wants nominees to eventually get a vote on the floor.
"I've been consistent with judicial philosophy in my picks as well as the character of the people I pick," he told reporters. "And I expect them to get an up-or-down vote. That's what I expect. And I think the American people expect that as well - people to have a fair hearing."
Ten of about 45 appellate court nominees have been blocked by the parliamentary tactic.
The import of the moment permeated the Senate atmosphere throughout the day. Democrats and Republicans rolled in cots for what was looming as an all-night session, though aides said they were uncertain any senators would be using them. And both Democrats and Republicans planned showings of "Mr. Smith Goes to Washington," the Jimmy Stewart movie that represents filibusters in the minds of many Americans.
As the day went on, senators from both parties gave detailed floor speeches laying out their competing positions on the issue.
Democrats assailed Republicans for what they described as a naked power grab in violation of the rules and traditions of the Senate.
"I implore senators to step back, step back, step back, step back from the precipice," Mr. Byrd said as he delivered a lecture on Senate history, reminding Republicans pointedly of one aspect of that history. "Don't forget that the worm turns."
