WASHINGTON (ABP) — A battle over President Bush's judicial nominees that threatened to destroy what little comity is left in the United States Senate has been defused — at least temporarily.
And many of the religious conservative leaders who pushed for the showdown are decrying the compromise that halted it.
A bipartisan group of senators announced late May 23 that they have reached a deal in the battle over Democrats' use of the filibuster to block some of Bush's most controversial nominees to federal judgeships.
“I am pleased that sensible voices have come together to seek common ground and avert a disaster that would have badly damaged this institution and America's faith in us,” said Sen. Mark Pryor (D-Ark.), in a statement announcing the agreement. “Our compromise shows that there is still a spirit of trust and bipartisanship in this body, and we should foster this spirit as we get back to doing the work of the American people.”
As a result of the compromise, the Senate approved Bush's nomination of Priscilla Owen to a seat on the 5th U.S. Circuit Court of Appeals on a 56-43 vote. Owen, who previously was a Texas Supreme Court justice, was one of 10 Bush nominees that Democrats had blocked by use of the Senate parliamentary procedure.
The Senate has approved more than 200 other Bush nominees, most without objection. But Democrats opposed what they believed were examples of extremism or judicial “activism” in the records or writings of Owen and most of the other filibustered nominees.
Senate rules require 60 votes to close debate on any matter and move to a substantive vote. Because of that rule, minority parties with 41 seats or more in the chamber can block such up-or-down votes by refusing to end debate on a nominee or piece of legislation. Republicans hold a 55-44 majority in the chamber, with one independent who tends to vote with Democrats.
But Republicans — spurred on by the White House and some conservative religious groups — had threatened to do an end-run around the Senate's normal procedure for changing its rules and override the filibuster for judicial nominations by a simple majority vote. Such a move has been dubbed the “nuclear option” because it would have dramatically changed nearly 200 years of Senate tradition and risked major retaliation from Democrats.
Although the Senate's partisan leadership — Majority Leader Bill Frist (R-Tenn.) and Minority Leader Harry Reid (D-Nev.) — had reached a stalemate over the issue, the bipartisan group of 14 mostly moderate senators worked for weeks to avoid the showdown, saying it would risk destroying the chamber's tradition of collegiality.
On the eve of the vote, they emerged with a “Memorandum of Understanding on Judicial Nominations” that effectively rendered the leaders' entrenched positions irrelevant.
“Today, we have reaffirmed that, while our constitutional democracy is premised on majority rule, it is also grounded in a commitment to minority rights,” said Sen. Olympia Snowe (R-Maine), who also was part of the compromise group. “With this agreement, we preserve longstanding senatorial rights while eliminating the obstruction that has held up nominations to our federal courts. This compromise ensures that the very rules of the Senate that encourage the type of consensus-building embodied by this agreement remain intact.”
In the memorandum, Democrats pledged to vote to allow an up-or-down vote on Owen's nomination as well as those of two other filibustered nominees — California jurist Janice Rogers Brown for a seat on the District of Columbia Circuit Court of Appeals and former Alabama Attorney General Bill Pryor for a seat on the 11th U.S. Circuit Court of Appeals.
The memorandum also required no commitments on two other nominees who have been filibustered, and did not mention two additional nominees who have been blocked for non-ideological reasons.
And it committed the seven Republicans to vote against the nuclear option for the rest of the 109th Congress. However, it stipulated that judicial picks “should only be filibustered under extraordinary circumstances” and that each senator should “use his or her own discretion in determining whether such circumstances exist.”
That means Democratic signatories of the agreement could, for example, filibuster a Supreme Court nominee to whom they have “extraordinary” objections without breaching the agreement. However, if Republican signers decided the circumstances of such a filibuster were not “extraordinary,” they could be released from their commitment to oppose the nuclear option.
As a result of the compromise, the Senate voted on May 24 by a margin of 81-18 to close debate on Owen and proceed to the vote on the nomination itself.
Many religious conservatives seemed displeased with the deal.
“The seven Republicans who participated in the deal need to explain what Republicans gained in this 'compromise' that they did not already have — other than the fickle admiration of the mainstream media,” said Tony Perkins, head of the Washington-based Family Research Council, in the May 24 edition of his e-mail newsletter. “Peace won by the compromise of principles is a short-lived achievement.”
But the agreement won some backing from moderate and liberal groups that had opposed doing away with the filibuster — though their suppost was qualified in many cases.
In a May 24 statement, Barry Lynn of Americans United for Separation of Church and State said the deal averted a disaster temporarily, but nonetheless allowed “votes on two of the most extreme opponents of separation of church and state.”
Lynn said that Brown and Pryor “have, on numerous occasions, taken positions far outside the judicial mainstream on First Amendment rights, privacy rights and civil liberties,” noting that Brown has labeled the phrase “separation of church and state” an “uninformative metaphor” and that Pryor has questioned whether federal court precedent must be binding on the states.
“These two nominees have proven they are not fit for lifetime appointments on the federal bench,” he concluded.
As for Bush, he called the development “progress” in a May 24 speech on an unrelated topic. However, his press secretary reiterated to reporters that Bush believes all his judicial nominees deserve a straight up-or-down vote on the Senate floor.
The issue may come up sooner rather than later. Speaking on the Senate floor May 25, Frist threatened to bring two more controversial Bush court nominees to the floor soon. He also said the “nuclear option” is “still on the table” if Democrats filbuster future nominees.
Such a showdown would be likelier if Bush makes a highly controversial nomination to fill a vacancy on the Supreme Court. Many experts expect Chief Justice William Rehnquist to step down for health reasons this summer.
Besides Pryor and Snowe, the senators who signed the compromise memorandum were Democrats Robert Byrd (W. Va.), Daniel Inouye (Hawaii), Mary Landrieu (La.), Joe Lieberman (Conn.), Ben Nelson (Neb.), Ken Salazar (Colo.), and Republicans Lincoln Chafee (R.I.), Susan Collins (Maine), Mike DeWine (Ohio), Lindsey Graham (S.C.), John McCain (Ariz.) and John Warner (Va.).