WASHINGTON (BP)–In an agreement that keeps both the filibuster and the so-called “nuclear option” in place for future “extraordinary circumstances,” a group of 14 senators from both parties reached a compromise May 23 that confirms at least three of President Bush’s nominees while likely rejecting two — and avoiding an expected showdown on the Senate floor.
Under the agreement, the seven Republicans agree at least in the immediate future not to support the “nuclear” or “constitutional” option which would have changed the rules to ban judicial filibusters. A vote was set to take place May 24. In return, the seven Democrats agree not to filibuster three of Bush’s most conservative appeals court nominees -– Priscilla Owen, Janice Rogers Brown and William Pryor. The senators made no pledge either way on nominees William Myers and Henry Saad, meaning they likely still will be filibustered.
Four other nominees that Democrats previously had pledged to stop blocking are not mentioned in the agreement -– Susan Neilson, David McKeague, Thomas Griffith and Richard Griffin. Thus, Bush could see seven of nine nominees confirmed that Democrats either had filibustered or threatened to filibuster.
For future nominations, the seven Democrats pledged to use the filibuster only in “extraordinary circumstances.”
“And each signatory must use his or her own discretion and judgment in determining whether the circumstances exist,” the agreement reads.
The compromise allows Republicans to use the “nuclear option” for future nominees if they believe they are being filibustered for circumstances that are not “extraordinary.” The compromise also encourages the White House to work with the Senate in choosing nominees.
Majority Leader Bill Frist quickly took advantage of the compromise May 24, bringing Owen up for a “cloture vote” — that is, a vote to limit debate and prevent a filibuster. She passed, 81-18, and now awaits a confirmation vote.
Christian conservative leaders had backed a rule change.
“Whether this compromise is a serious defeat in the move toward a more conservative judiciary will be tested in coming months when we see if a majority of President Bush’s nominees get an up-or-down vote and if the filibuster is rarely, if ever, used,” Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, told Baptist Press. “If that is not the case, then Sen. John McCain will bear the major share of the responsibility for frustrating tens of millions of American voters who voted for President Bush at least in part because he promised to nominate judges in the Thomas-Scalia mold.
“I am extremely fearful that this so-called compromise will break down over the strain of one or more Supreme Court nominations in the near term,” Land said.
Jay Sekulow, chief counsel for the American Center for Law and Justice, said the compromise is a mix of good and bad. He said the “extraordinary circumstances” language sets a high bar for filibustering and he asserted that future nominees in the mold of Owen, Brown and Pryor cannot be filibustered because all three were approved as part of the deal.
“Pro-life judges have been affirmed here,” he said on his radio program. “… [T]hat’s now the new standard that’s going to have to be applied, and that, I think, speaks well for us.”
Tony Perkins, president of the Family Research Council, made a similar argument.
“[T]he standard agreed to by the ‘Gang of 14’ is set by this agreement: None of the nominees named above represents an ‘extraordinary circumstance,'” Perkins said in a statement. “All are well-qualified, indeed superb, jurists. By acknowledging this fact now, the seven Republican and seven Democratic senators who have concluded this compromise are setting a standard that must now be followed consistently.
“Nominees of the same caliber as Brown, Owen, Pryor — and any others the president may name — should receive up-or-down votes if offered as candidates for any federal court, and particularly the Supreme Court.”
Democrats had filibustered 10 of Bush’s 52 appeals court nominees, with some waiting more than four years for a confirmation vote.
Most of the 14 senators appeared together at a news conference after reaching the deal.
“This agreement is based on good faith –- good faith among people who trust each other,” Sen. Mike DeWine, an Ohio Republican and one of the signers, said. “It’s our complete expectation that it will work…. We don’t think this will happen, but if an individual senator believes in the future that a filibuster is taking place under something that is not extraordinary circumstances, [Republicans] reserve the right to do what we could have done [May 24].”
The group of 14 included two who openly said they were prepared to support the “nuclear option” -– DeWine and Lindsey Graham, R.-S.C.
DeWine and Graham both said the “nuclear option” remains a possibility if Democrats break their end of the deal.
“If one of the [Democratic] seven decides to filibuster and I believe that it’s not an extraordinary circumstance … then I’ve retained my rights under this agreement to change the rules if I think that’s best for the country,” Graham said on the Senate floor the morning after the compromise.
Minority Leader Harry Reid, though, declared the rule change dead. He was not part of the 14 senators who compromised.
“[The compromise] took the nuclear option off the table,” Reid, D.-Nev., said May 25. “The nuclear option is gone for our lifetime. We don’t have to talk about it anymore. I’m disappointed that there’s still these threats of the nuclear option.”
Reid was responding to comments by Majority Leader Bill Frist, who had given the compromise mixed reviews. He praised the fact that some of the filibustered nominees would be given a confirmation vote.
“The constitutional option remains on the table,” Frist said. “It remains an option. I will not hesitate to use it if necessary. [But] it should be used as a last resort.”
Frist said the compromise would make it “almost impossible” to filibuster future nominees, provided the agreement is “followed in good faith.”
Sen. Rick Santorum, R.-Pa., speculated at a news conference that either Myers or Saad would have lost an up-or-down vote if they had not been filibustered. He did not specify which one would have lost.
Shortly after the agreement was reached May 23, both Frist and Reid appeared on the Senate floor, with each saying the deal is a victory for the “American people.” Both said they disagreed with parts of the compromise but nonetheless offered praises for the group of 14.
“I haven’t had a peaceful night’s rest in at least six weeks,” Reid said.
Said Frist: “It has some good news and it has some disappointing news, and it will require careful monitoring.”
Reid countered: “The filibuster is [still] here, and Mr. Smith can still come to Washington.”
But Frist said the deal falls short of the principle that every nominee receive an up or down vote.
“If Owen, Pryor and Brown can receive the courtesy and respect of a fair up or down vote, so can Myers and Saad,” Frist said, then adding, “It is significant that the signers gave up using the filibuster as it was deployed in the last Congress.”
Joseph Lieberman, D.-Conn., noted that the 14 senators signed the deal on the eve of what was expected to be an historic vote.
“We came together and did the unexpected,” he said. “In a Senate that has become increasingly partisan and polarized, the bipartisan center held…. Each of us accepted parts of this agreement which were not perfect to our desires.”
Sen. Mitch McConnell, R.-Ky., applauded Frist for his leadership during the filibuster debate.
“Had we not had a deadline, we wouldn’t be where we are today,” McConnell said.
Graham of South Carolina said the compromise is not a defeat for the White House.
“There’s going to be a Supreme Court nomination coming — probably soon. And that’s what this really is about,” he said. “… I think we can get a conservative justice nominated and confirmed if we really try hard. Nobody should expect anything less from George W. Bush.”
Republican signers to the agreement were: Lincoln Chafee (R.I.), Susan Collins (Maine), Mike DeWine (Ohio), Graham, McCain (Ariz.), Olympia Snowe (Maine) and John Warner (Va.).
Democratic signers were Robert Byrd (W.Va.), Daniel Inouye (Hawaii), Lieberman, Mary Landrieu (La.), Ben Nelson (Neb.), Mark Pryor (Ark.) and Ken Salazar (Colo.).
Without the seven Republicans, GOP leaders cannot successfully pass the “nuclear option.” Republicans have 55 seats, and at least 50 votes are needed. Likewise, without the seven Democrats, Reid cannot successfully filibuster a judicial nominee. Democrats have 44 seats, and there is one independent who almost always votes with the Democrats. A filibuster requires 40 votes.