Senate Showdown on Judges

Majority leader vows radical rule changes if Bush’s bench nominees don’t get floor votes

On May 18, the Republican majority leader of the United States Senate, Bill Frist, a Tennessee Republican, kept his promise to help resolve the fate of several of President George W. Bush’s controversial nominees before Memorial Day. Frsit called for a floor vote on the appointment of Judge Priscilla Owen to a federal appellate court. The outcome hinges on whether Republicans can force a rule change that would prevent filibusters by Democrats on appellate court nominations, a shift with potentially significant implications on the constitutional separation of powers between the executive and legislative branches of the federal government.

Republicans hold a 55-44 majority in the Senate, with Sen. Jim Jeffords, a Vermont independent, usually voting with the Democrats.

In 2001, of the over 200 judges Bush nominated for federal appellate bench vacancies, Democrats used the filibuster, a parliamentary tactic that prevents the termination of debate, to prevent votes from being taken on 10 nominees.

After his re-election, Bush re-nominated seven of those blocked choices and Democrats have vowed to continue to block them.

Frist and Minority Leader Harry Reid, a Nevada Democrat, have engaged for the past month in a contentious debate on how to resolve the impasse. According to the Washington Post, in a possible indication of a lessening in tension, Reid was to be a dinner guest at Frist’s Washington, D.C. home on Sunday.

However, on Monday, Reid and Frist announced that negotiations aimed at averting a showdown had ended.

In an effort to win public support for his strategy, Frist brought Janice Rogers Brown and Priscilla Owen to Capitol Hill on Wednesday where they had photo-op sessions with Bush and Republican senators. Frist vowed to introduce the nominations on the Senate floor on Wednesday, a highly unusual tactic in defiance of the chamber’s longstanding traditions.

During Wednesday’s debate, a last-ditch attempt to avert the confrontation by Reid, who suggested that all 100 senators, without aides, meet and work out a deal, failed. “Have all of us retire,” suggested Reid, “…sit down and talk through this issue to see if there’s a way we can resolve this” Reid said to no avail.

Frist later responded, “I’m trying to move a qualified nominee, Priscilla Owen, and we hear these attempts to delay even right now, to sidetrack, to even consider somebody else, and that’s the challenge.”

A filibuster can be stopped with 60 votes. Republicans are five votes shy of that so-called “supermajority.” Frist has vowed that if Democrats persist with their threat, he will call a vote on the Senate rule of how many votes are required to halt a filibuster for a judicial nominee. Whether Republicans would agree to change a time-bound rule in a body known for its deference to precedents, is unknown.

Senators have come to refer to Frist’s rule-changing maneuver as the “nuclear option” because it would so drastically alter the Senate’s way of conducting business.

Three Republicans—Arizona’s John McCain, Rhode Island’s Lincoln Chafee and Maine’s Olympia Snow—have stated publicly their opposition to a rule change.

Susan Collins, another Maine Republican, and Virginia’s John Warner are also reportedly leaning towards opposing a change.

A compromise floated around by McCain and Ben Nelson, a Nebraska Democrat, would make Republicans promise in writing that they would not move to ban filibusters for the next two years and Democrats would not block court nominees except in the most “extreme circumstances.” However, as of Wednesday, not enough senators had agreed to this compromise to make it a likely settlement.

Frist can halt the debate, or invoke cloture, as early as Thursday by declaring further argument unnecessary. If sixty senators agree, Owen’s nomination then goes for a simple up-or-down vote.

If fewer than sixty senators vote for cloture, Frist could then call for a change in the rules governing cloture. If fifty-one senators agree to change the number of votes needed to end cloture, Democrats will lose the filibuster as their most potent remaining parliamentary opposition tactic. A direct vote on Owen’s candidacy would then be held, which would presumably go in her favor.

Vice-President Dick Cheney said two weeks ago that he would vote in favor of the rule change if, as Senate president, he needs to break a tie vote.

Senate rules are weighted to allow for consideration of minority opinion, lending a more deliberative approach that tends to make debate slower than in the House of Representatives.

In a report last month, the non-partisan Congressional Research Service stated that a filibuster rule change would “achieve changes in Senate procedure by using means that lie outside the Senate’s normal rules of procedure.”

Others see the political maneuvering as a Republican majority run amok. “This is simply an attempt by Bush and the right wing to stack the federal courts with extremists,” said Michael Adams, an official with Lambda Legal. “They want to close off the courts as avenues for civil rights for gays and lesbians and all other minorities.”

Others judicial nominees awaiting confirmation are David McKeague, William Pryor, William Myers, Henry Saad, and Richard Griffin.

The Democrats oppose three nominations to the Sixth U.S. Circuit Court of Appeals—Griffin, Saad, and McKeague—as retribution for Republicans blocking former President Clinton’s choices for the same court, though those were blocked in committee, not with filibusters.

The other four nominees are so conservative, claim Democrats, that their views lie outside mainstream jurisprudential thinking.

Many conservatives, including Frist, have claimed that the Democrats simply oppose these judges because they are “people of faith.”

According to her detractors, Owen, as a member of the Texas Supreme Court, has ruled in favor of corporate interests against employees and consumers, and of distorting laws’ original intent in order to propound a conservative agenda.

Attorney General Alberto Gonzales, who served on the Texas Supreme Court with her, characterized Owen’s opinion in an abortion case as an attempt to “usurp the legislative function” and “an unconscionable act of judicial activism.”

On Tuesday the Log Cabin Republicans, a gay political group, along with the Republican Majority for Choice, a pro-abortion rights organization, placed an advertisement in Roll Call magazine, calling for opposition to another Bush nominee, William Pryor, whose term as a federal judge under a recess appointment is nearing completion.

“Pryor is far outside the judicial and political mainstream,” said Chris Barron, Log Cabin’s spokesman. “He has a history of intervening in cases where there is simply no reason for him to be involved.”

Barron noted Pryor’s friend-of-the-court-brief supporting sodomy laws that he filed as Alabama’s attorney general during the U.S. Supreme Court’s arguments in Lawrence v. Texas.

In that brief, Pryor equated gay sex with pedophilia, necrophilia and incest.

On the filibuster controversy, however, Barron said LCR had no position. “We just ask that all fair-minded Republicans oppose William Pryor.”

Appointment to a federal court has lifetime tenure. Lower courts use the decisions of the federal circuits as precedent-setting rulings. Since only a small percentage of cases ever wind up before the Supreme Court, the federal appellate circuits have the enormous ability to shape case law for generations.

For that reason, as well as the likelihood that within his remaining time in office Bush will make one, possibly several nominations to the Supreme Court, Democrats are reluctant to give up the filibuster. Both Chief Justice William H. Rehnquist and Associate Justice Ruth Bader Ginsburg have combated cancer and are considered likely to retire in the near future. Justice John Paul Stevens is 85.

“There’s no reason to believe this will stop with judicial nominees. You could imagine the Republicans doing this every time something doesn’t go their way,” said Adams.

The current Senate rule on cloture is considered responsible for helping to defeat the Federal Marriage Amendment, a constitutional amendment that would have banned gay marriage throughout the nation. Republicans have vowed to re-introduce the measure.

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