Filibuster Fight

The GOP-controlled Senate Judiciary Committee on identical 10-8 partisan votes gave its approval to Texas judge Priscilla Owen and California judge Janice Rogers Brown, who were nominated by Bush for lifetime judgeships on the regional U.S. appeals courts, the nation's second-highest courts.

Owen wants to work on the 5th U.S. Circuit Court of Appeals in New Orleans and Brown wants a seat on the U.S. Circuit Court of Appeals in the District of Columbia. They were blocked from confirmation by Democratic filibuster threats during Bush's first term but were renominated by the president after he won a second term in November.

Democrats say they will block the nominees again because they are too conservative. "They deserved to be rejected before," said Sen. Charles Schumer, D-N.Y. "They deserve to be rejected again."

But Senate Majority Leader Bill Frist, R-Tenn., has threatened to ban judicial filibusters to stop Democrats from blocking the judges again, and has been working to secure the 50 votes he needs from his Republican caucus to make the rules change...

In an attempt to make Republicans reconsider that plan, Senate Democratic leader Harry Reid has vowed to slow or halt Senate action on much routine business if Frist follows through with his threat to force up-or-down votes in which nominees could be confirmed by a bare majority...

Democrats have promised to continue to block the nominees they held up during Bush's first term. Democrats blocked 10 judicial nominees from confirmation through filibuster threats. Three withdrew and Bush renominated the rest.

Democrats called Brown and Owen judicial activists who should be stopped before they get lifetime appointments. "The nomination of Janice Rogers Brown is a prime example of a nominee who sees the federal bench as a platform to advance her own extremist views," said Sen. Edward Kennedy, D-Mass.

And Owen "is an example of a judge who is very eager to make law from the bench," said Sen. Patrick Leahy of Vermont, the committee's top Democrat.

North Carolina judge Terrence W. Boyle, a former aide to retired Sen. Jesse Helms, R-N.C., who expected a committee vote as well, was held over after Sen. Edward Kennedy, D-Mass., requested extra time to review some of his rulings as a U.S. District judge. Boyle was never filibustered by Democrats because his nomination was blocked in committee by then-North Carolina Sen. John Edwards.

Another of Bush's blocked nominees, Idaho lawyer William Myers, already has been approved by the Judiciary Committee. But conservatives would rather see the final showdown come over Brown, Owen or U.S. Appeals Court Judge William Pryor, who was given a temporary appointment by Bush after he was blocked by Democrats.

Conservatives during the last Congress accused Democrats of being anti-minority for blocking Brown, who is black; anti-women for blocking Owen, and anti-Catholic for blocking Pryor.

Activists plan a similar tactic this year, with Frist planning to deliver a taped message to Christian conservatives on April 24 saying Democrats are "against people of faith" for blocking Bush's nominees.

In a portentous, tension-filled session, the Senate Judiciary Committee yesterday voted along party lines to approve two of President Bush's nominations for federal appeals courts, setting the stage for a potentially historic confrontation over the right to filibuster.

Republicans are threatening to end filibusters as they are used to block judicial nominees - the so-called nuclear option - and Democrats said they would respond by using parliamentary tactics to tie up Senate business.

In the middle of this gathering storm, Judiciary Committee Chairman Arlen Specter (R., Pa.), battling Hodgkin's disease, took to the Senate floor after the committee vote to urge his colleagues to step back from the void and "vote their consciences independent of party dictation."

Looking thin, his hair reduced to gray wisps by chemotherapy, Specter warned of the consequences of a partisan meltdown.

Earlier, by identical 10-8 votes, the committee gave its endorsement to Texas Judge Priscilla R. Owen to the U.S. Court of Appeals for the Fifth Circuit in New Orleans and to California Judge Janice Rogers Brown to the U.S. Court of Appeals for the District of Columbia Circuit. Both are lifetime appointments to the nation's second-highest courts.

Owen and Brown were previously approved by the committee in the last session of Congress and blocked on the Senate floor by Democrats, who maintain that the nominees are too conservative and out of the judicial mainstream.

Their renomination by Bush and yesterday's approval "is a prelude to setting up the greatest constitutional crisis the Senate has ever faced," said Sen. Charles E. Schumer (D., N.Y.).

A Senate showdown on these nominations could come as early as next week, although analysts suggested that Majority Leader Bill Frist (R., Tenn.) - who controls the GOP agenda - would wait until after the next Senate recess ends May 9.

Because some Republicans have said they will not vote for the nuclear option and others are undecided, it is unclear whether Frist has the votes to end the filibuster.

A story yesterday in the Washington-based newspaper The Hill suggested that Sen. Rick Santorum of Pennsylvania, the Republican Conference chairman, was arguing for a delay in "going nuclear" because polls had showed a majority of Americans opposed such a move.

Santorum said in an interview that this was not true. "My one motivation is to affirm the constitutional duty of all senators to give advice and consent on the President's judicial nominations," he said. "That includes a vigorous debate ending in an up or down vote."

What Republicans are threatening is a parliamentary rule change that would block the minority party, currently the Democrats, from using the filibuster to block judicial nominees...

Currently, to end a filibuster, 60 votes must be cast to invoke cloture. The Republicans, who hold 55 Senate seats, want to end a filibuster on judicial nominees with a simple majority of 51.

GOP strategists have uncovered a parliamentary device for doing so. Sen. Trent Lott (R., Miss.) first dubbed this the nuclear option, and the name has stuck.

The change is deemed so potent that it may blow up Senate business for a considerable time. Minority Leader Harry Reid (D., Nev.) has threatened to use every procedural tactic possible to bring the Senate to gridlock.

This group includes Sens. John W. Warner of Virginia, Susan Collins of Maine, Gordon H. Smith of Oregon, and Chuck Hagel of Nebraska.

Sens. John McCain of Arizona and Lincoln Chafee of Rhode Island have already said they oppose the change, and Maine's Olympia J. Snowe said she was leaning that way.

Specter has declined to tip his hand, jokingly saying he would "jump off that bridge if we come to it" and preaching compromise.

During yesterday's committee session, Specter, drinking Gatorade to offset the dehydrating effects of his illness and chemotherapy, pushed the debate along, knowing that it would come down to party-line votes.

That did not stop the Democrats from railing against Owen and Brown, even as Republicans thumbed their BlackBerrys or whispered to one another.

"The Senate has already approved 205 of the President's judicial nominees," Sen. Edward M. Kennedy (D., Mass.) said, but by nominating Owen, the White House "wants to provoke a fight."

As for Brown, Sen. Patrick J. Leahy (D., Vt.) said she was a "results-oriented, agenda-driven" judge who was unfit to serve on a D.C. appellate court that often heard government issues.

Specter mostly kept the GOP comments brief, letting the Democrats air their grievances. Sen. Russell D. Feingold (D., Wis.) summed up the minority's view in saying that Bush "is responsible for the ill will that has plagued this body."

Later, in a lengthy speech on the Senate floor, Specter found blame on both sides "as each party ratcheted up the ante" on the confirmation of federal judges.

Specter said he sought to approve less controversial judges first in this session to allow time for both sides to cool off and negotiate.

During the speech, Specter quoted extensively from historical examples of independent acts by lawmakers, including some cited in John F. Kennedy's Profiles in Courage.

"These illustrations of senatorial and judicial independence," he said, "demonstrate the value of free thinking in deciding what is best for our nation's long-range interests."