Battle Continues

The negotiators had spent a week laboring to find the language to define their agreement. But with the Senate just hours away from pulling the trigger on the "nuclear option," the seven Republicans and seven Democrats managed to defy predictions. They found both the language to make a deal possible and the courage to risk the wrath of partisans on both sides who were pushing for an all-or-nothing outcome.

"Everybody in the room wanted to get it done," Sen. Mike DeWine (R-Ohio) said in a telephone interview last night. "Everybody felt it was in the country's best interest to get this agreement made. We were very close all the way through, but we just couldn't quite get it done. It was having the looming deadline of [today] that got it done."

The deal brings mixed results for President Bush. It means that at least three of the nominees who have been blocked for years will make it to the appellate courts, while at least two will not. Beyond that, without a total ban on judicial filibusters, as the nuclear option would have guaranteed, the president will not have such a free hand in selecting a Supreme Court nominee. He also will be under pressure from the moderates to work more cooperatively with the Senate on judicial nominations or face rebellion from at least some of them.

For that reason, the fragile compromise, stitched together in the office of Sen. John McCain (R-Ariz.) just as the Senate began an all-night session, will not necessarily end the battle over the future shape of the judiciary. At best, the group produced a cease-fire in the judicial wars that will deal with nominees who long have been in the confirmation pipeline.

After that, no one can say with certainty whether the deal will stick, particularly if there is a Supreme Court nomination in the near future, as many anticipate. The 14 senators who joined hands last night said theirs is an agreement based on faith and goodwill, but there is no certainty or even commitment that they will continue to operate as a group once past the current nominees in question.

"I think they did what the Senate very often does," said Ross K. Baker, a professor of political science at Rutgers University and a longtime student of the Senate. "They kicked the can down the road. They basically postponed a crisis and set up the predicate for another one in the future on the Supreme Court nomination."

Still, it was an extraordinary moment for the moderates in Congress, who have talked gamely about working across party lines but have often fallen short in delivering on their promises. For that they have been ridiculed, held up as examples of weakness and vacillation. But for the time being, they have demonstrated that there is an alternative to the partisan polarization that has been so much in favor in both parties.

"We came together and we did the unexpected," Sen. Joseph I. Lieberman (D-Conn.) told reporters when the agreement was announced. "In a Senate that is increasingly polarized, the bipartisan center held"...

The 14 members of the group said they were motivated by their desire to protect the institution of the Senate from what they believed would be a terribly disruptive act. But that motivation alone could not bridge partisan differences and grievances that both sides brought to the negotiating table.

Republicans wanted assurances that Democrats would not make filibusters the routine on judicial nominations. Democrats wanted the nuclear option taken off the table. Both sides wanted to see more consultation with the White House before submitting judicial nominees, a demand promoted most strongly by the two most senior members of the group, Sens. John W. Warner (R-Va.) and Robert C. Byrd (D-W.Va.).

But there is wiggle room on both sides that leaves open the question of what will happen in the future. Democrats who signed the agreement have the right, as individuals, to filibuster future judicial nominees "under extraordinary circumstances."

Republicans reserve the right, individually, to support the nuclear option if they believe Democrats are abusing the agreement. Democrats said the final language on that point is closer to what they had wanted. But at the news conference, DeWine explicitly said that if the agreement breaks down, Republicans in the group feel free to support the use of the nuclear option.

Majority Leader Bill Frist (R-Tenn.) was more cautious, noting that he still believes that all judicial nominees deserve up-or-down votes and that the agreement "falls short" of that principle and "will require careful monitoring."

Among the outside groups, those on the left sounded far happier with the agreement than those on the right, who had pushed Frist to guarantee up-or-down votes on all of Bush's nominees. But if the deal heads off a filibuster on a Supreme Court nominee with a record as conservative as those of the three appellate court judges given a green light last night, organizations on the left may be disappointed later.

Given the stakes ahead, the negotiators know that partisanship will continue to threaten the agreement and that its success will depend both on the kind of judges Bush sends up and on whether the goodwill and good faith exhibited during the long negotiations prevail when the going gets tough again.

Byrd invoked Benjamin Franklin last night and said the group of 14 had helped preserve the republic. "We have lifted ourselves above politics," he said. "And we have signed this document in the interest of the United States Senate, in the interest of freedom of speech, freedom of debate and freedom to dissent in the United States Senate."