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Debate over judicial filibusters begins; Specter still uncommitted

WASHINGTON (BP)–Beginning a process that could result in a dramatic reshaping of the federal court, Senate Majority Leader Bill Frist brought the nomination of Priscilla Owen to the floor May 18, saying she is well qualified and stressing he intends to end the filibustering of judges.

“The minority [has] destroyed 214 years of senate tradition, defied the clear intent of the Constitution and undermined the democratic will of the American people,” Frist said during floor debate, referring to the 10 nominees Democrats have filibustered. “… This new precedent cannot be allowed to stand in the Congress.”

An historical vote on the so-called “constitutional option” or “nuclear option” isn’t expected to take place until at least Friday, and may not happen until next week. Using that option, Republicans would take a vote to prevent the filibustering of judicial nominees. Only 51 votes would be needed. Filibusters on other matters — such as legislation — would not be impacted.

The 10 filibustered nominees have enough votes for confirmation but have fallen short of the 60 votes needed to overcome a filibuster. The 10 jurists amount to nearly 20 percent of President Bush’s appeals court nominees. Liberal groups — led by abortion rights and homosexual activist organizations — have helped lead the opposition.

If the “constitutional option” is passed, Bush’s most conservative nominees likely would be confirmed. Pro-family groups hope such nominees would issue friendlier rulings on issues ranging from abortion to religious freedom to “gay marriage.”

Frist said it is the first time in Senate history that a judicial nominee who has the support of a majority of senators has been blocked from receiving an up-or-down vote.

But it is unclear whether Frist has the votes to ban judicial filibusters. There are 55 GOP senators, and three are expected to vote with the Democrats. Republicans could afford to lose the support of two more in their ranks and still pass the rule change, with Vice President Richard Cheney breaking the 50-50 tie.

One of the few remaining Republican senators — Sen. Arlen Specter of Pennsylvania — spoke Wednesday morning but did not say how he would vote.

“I have not rendered a decision, because I believe I can be most helpful on brokering a compromise by remaining silent,” he said from the floor.

The chairman of the judiciary committee, Specter said both Democrats and Republicans “have been at fault” for the current stalemate and that the controversy has been escalating since 1987, when Democrats took control of the Senate. Up until 1987, the confirmation rate for President Reagan’s appeals court nominees was 89 percent, Specter said. Thereafter it fell to 65 percent, he said. Specter also blamed Republicans for bottling up President Clinton’s nominees in the judiciary committee.

Referring to the 1970s, Specter said only 10 of President Carter’s nominees failed to receive a judiciary committee hearing. After that it increased to 30 for Reagan and 58 for President George H.W. Bush, he said. Specter said approximately 70 of Clinton’s nominees did not receive a floor vote — mostly because of committee delays.

“The national interest would be served by structuring a compromise to return to the status quo before 1987,” Specter said.

Specter added that he believes the “constitutional option” could have dire consequences either way it falls. If it passes, he said, then the rights of the minority would be “significantly diminished” and the door would be open to ban legislative filibusters. But if it fails, Specter said, Democrats could block even more Bush nominees and future Senate minorities “would be emboldened” to “institutionally and permanently revise the balance of power” between the president’s nominating power and senate’s confirmation power.

Specter also said he feared that with the filibuster, the Senate will be unable to fill a future vacancy on the Supreme Court, resulting in 4-4 decisions because only eight judges would be sitting on the bench.

Minority Leader Harry Reid, D.-Nev., asserted that judicial filibusters are essential to keeping controversial nominees from the courts.

“The right to extended debate is never more important than when one party controls Congress and the White House,” Reid said. “In these cases the filibuster serves as a check on power…. Right now, the only check on President Bush is the Democrats’ ability to voice their concern in this body, the Senate. If Republicans roll back our rights in this chamber, there is no check on their power. The radical right-wing will be free to pursue any agenda they want.”

Over and over Wednesday, Republicans said Democrats were taking part in unprecedented tactics.

“In the last Congress, for the first time in history, a minority of senators obstructed the principle of a fair up or down vote on judicial nominees,” Frist said. “That was unprecedented.”

Owen currently serves on the Texas Supreme Court and has been nominated by Bush to the Fifth Circuit Court of Appeals. Frist noted that in Owen’s last election, in 2000, she was elected with 84 percent of the vote. A Libertarian judge also was on the ballot.

“Is Priscilla Owen out of the mainstream?” Frist asked. “Eighty-four percent of Texans think she’s in the mainstream. Are 84 percent of Texans out of the mainstream?”

Conservative Christian groups believe Bush’s nominees have the potential to roll back decades of socially liberal rulings. The groups favor the constitutional option.

“Colorado Sen. Ken Salazar has called me the ‘antichrist of the world’ for pointing out how he broke his campaign promise by supporting his party’s filibusters,” Focus on the Family’s James Dobson said in a statement. “On the Senate floor this morning, Vermont’s Patrick Leahy — after wondering what planet I might be from — accused me of ‘contemptible’ actions and of practicing ‘religious McCarthyism’ for pointing out the anti-religious bias evident in the public statements and actions of some Democratic senators.

“This kind of bluster is what is contemptible. It is just another attempt to obscure the real issue here — that every judicial nominee with clear majority support is entitled to an up-or-down vote. Sen. Salazar, Sen. Leahy and their colleagues won’t admit that because it would jeopardize their efforts to hang on to the last bastion of liberal power, the courts.”

Dobson and others have called on citizens to call their senators at the Capitol switchboard, (202) 224-3121, and ask them to vote for a rule change to end filibusters.

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  • Michael Foust