WASHINGTON (BP)–Debate on the use of the judicial filibuster continued May 19 as moderate senators became increasingly hopeful they could reach a deal and avoid triggering a vote on the so-called “nuclear option” rule change.
A group of roughly 12 senators from both parties continued meeting behind closed doors, with both sides wrangling over the language of a possible compromise.
“Sometimes these negotiations and these consultations and meetings seem endless, but you’re not able to really judge how long something’s going to take,” Democratic Sen. Ben Nelson of Nebraska told FOX News. “I don’t know if you’re going to have [a compromise] within the next hour or at all, but you’ve got to continue to talk and work through language and work through concepts.”
Under one Republican-backed compromise reported by the Associated Press, six of President Bush’s nominees would not be filibustered and would receive up-or-down votes: Priscilla Owen, Janice Rogers Brown, William Pryor, Susan Neilson, David McKeague and Richard Griffin. Two nominees would be rejected: William Myers and Henry Saad.
Under the compromise, senators would agree to operate in “good faith” when debating future nominees.
According to FOX News, at least six Republican senators are known to be participating in the negotiations: Mike DeWine (Ohio), Lindsey Graham (S.C.), John Warner (Va.), John McCain (Ariz.), Susan Collins (Maine) and Lisa Murkowski (Alaska). Democratic participants are Nelson, Ken Salazar (Colo.), Mary Landrieu (La.), Joseph Lieberman (Conn.) and Mark Pryor (Ark.).
The sticking point in the negations has been the future uses of the filibuster and the rule change. Republican negotiators want a promise that future nominees will not be filibustered. Democrats want a pledge that the GOP won’t try to change the rules for the remainder of this Congress.
The Longmont (Colo.) Times-Call newspaper reported May 19 that Salazar offered to support all of Bush’s nominees if the rule change was taken off the table. That offer apparently was rejected.
As part of their compromise, Democrats have pledged not to filibuster nominees unless there are “extraordinary” circumstances. But Republicans assert the term “extraordinary” is vague and leaves Democrats with the ability to filibuster at will. National Review’s Byron York reported that one possible compromise would be for Republicans to pledge to use the rule change only in “extraordinary” circumstances, and for Democrats to pledge to do the same with the filibuster.
Nelson told FOX News that “each word” of the compromise “is very important.”
At issue are 10 appeals court nominees that Democrats filibustered during Bush’s first term. That amounts to nearly 20 percent of Bush’s 52 appeals court nominees. Although the Senate has confirmed 218 of Bush’s judges, the majority of those were for positions on the district court, which is the lowest branch in the federal judiciary.
All of the filibustered nominees had enough votes for confirmation but not the 60 votes needed to overcome a filibuster. Republicans say it is the first time in Senate history judicial nominees with support from a majority of senators have been filibustered.
If a compromise is not reached, Majority Leader Bill Frist is expected some time next week to take a vote on the rule change to prevent the filibustering of judicial nominees. It would pass with 51 votes. Democrats call it the “nuclear option,” Republicans the “constitutional option.”
Conservative Christian groups support a rule change, saying it will clear the way for Bush’s most conservative nominees to be confirmed. Those groups hope new judges will issue friendlier rulings on abortion, religious freedom, “gay marriage,” and a host of other cultural issues.
“The judicial branch of government, of course, is the one that’s deciding every major culture issue that we’re involved in, so we take it very, very seriously,” Jay Sekulow of the pro-family legal group American Center for Law and Justice said on his radio program May 19.
Senators debated the nomination of Owen May 19. She currently serves on the Texas Supreme Court.
“We will take as long as it takes for senators to express their views on this qualified nominee,” Frist said. “But at some point that debate should end, and there should be a vote. It makes sense — up or down, yes or no, confirm or reject.”
Democrats say Owen and the other filibustered nominees are out of the judicial mainstream. Sen. Debbie Stabenow, D.-Mich., said the Senate should have the right periodically to tell the president, “Send us another nominee. Send us someone in the mainstream.”
Sen. Gordon Smith, R.-Ore., spoke from the floor May 19 for the first time since he announced his support for a rule change.
“This is an issue and a moment in Senate history which, frankly, I wished there could have been found a way to have [been] avoided,” he said. “[But] I do think elections have consequences, presidents have rights and we have a role to play in advising and consenting.”
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