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Nuking Senate debate

Politics | Senators on both sides risk fallout in judicial nominee stalemate

Issue: "John Bolton: Take cover!," May 7, 2005

The first one to blink in the face-off over judicial nominees turned out to be Senate Minority Leader Harry Reid (D-Nev.). But Senate Majority Leader Bill Frist acted as if he never saw Mr. Reid cave.

As the Senate Democrats' filibuster threats over judicial nominees came to a boil, Mr. Reid offered a compromise to Republicans: Democrats would stand down, allowing the Senate to vote on Richard Griffin, David McKeague, and Susan Neilson, if Republicans withdrew support for Henry Saad, a nominee for the 6th U.S. Circuit Court of Appeals.

Mr. Frist said no thank you: "At the end of the day, one will be left standing . . . the Constitution, which allows up-or-down votes, or the filibuster."

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Senate Democrats led by Mr. Reid have threatened to use a parliamentary procedure known as a filibuster to stall President Bush's judicial nominees to lifetime positions on federal courts of appeal. Three others-Charles Pickering, Carolyn Kuhl, and Miguel Estrada-withdrew their nominations or retired. That leaves seven-William G. Myers III, Priscilla Owen, Janice Rogers Brown, Mr. Griffin, Mr. McKeague, William Pryor, and Mr. Saad-hanging on, either stuck in committee or stalled on the Senate floor. Democrats have also threatened to filibuster a handful of others nominated by the president.

What has provoked Democrats to stand firmly behind their filibuster pledges for so long? Democrats call the nominees extremists and ideologues, while liberal lobby groups decry the judges' views on abortion and/or religion.

In a televised rally on April 24, Family Research Council president Tony Perkins, Focus on the Family's James Dobson, and Baptist seminary president Al Mohler joined Mr. Frist to demand Democrats stop filibustering against people of faith. But while nominees Ms. Brown, Ms. Owen, and Mr. Pryor's professions of Christ are known, other nominees' professions are not well known. What is known, however, is that almost every single Bush nominee blocked by Senate Democrats apparently employs strict interpretations of the law and Constitution. Democrats, who seem more comfortable interpreting the Constitution against a cultural backdrop, may fear these nominees could eventually turn into protégés of strict constructionist Supreme Court justice Antonin Scalia.

Last month Republicans on the Senate Judiciary Committee moved nominees Janice Rogers Brown and Priscilla Owen through the committee for consideration before the whole Senate. The move set the stage for what could become one of the most important showdowns in the Senate's history. If Democrats refuse to budge on Judge Brown or Judge Owen, Republicans have three options:

• GOP senators could withdraw their support from the two nominees-something the Republican leadership has said it will not do.

• Republicans could force Democrats to conduct an actual filibuster, or talkathon, creating a massive spectacle that could embarrass both sides; GOPers if they couldn't find the 60 votes needed to end the filibuster; or Democrats for thwarting the process.

• Republicans could adopt the "nuclear option," a choice so drastic even GOP lawmakers shy from it. Without the 60 needed votes to end a filibuster, Republicans could simply gather 50 votes and change Senate rules to prohibit filibusters in the case of judicial nominees. But such changes-especially in a body like the Senate, where tradition reigns-might alienate moderate to liberal Republicans like Arizona's John McCain or Rhode Island's Lincoln Chafee. Plus, at least one internal Republican poll indicates a forceful rewrite of Senate rules wouldn't go over well with the public.

With interest groups on both sides investing heavy emotional capital, Democrats and Republicans apparently both want to win, but neither side wants to take blame from the public. The dispute will certainly answer at least one question: Are Republicans in power on Capitol Hill or not?

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