WASHINGTON – Republican lawmakers frustrated with the slow pace of judicial confirmations and Democratic maneuvers to prevent President Bush's nominees from getting a vote on the Senate floor are taking out their frustrations in a variety of ways.
In the beginning of Wednesday's Senate Judiciary Committee confirmation hearing for Bush nominee John G. Roberts Jr. (search), Chairman Orrin Hatch (search) praised Democrat Sen. Charles Schumer (search) of New York for asking "intelligent" questions, but then Hatch switched gears.
"Some [of his questions] I totally disagree with," Hatch of Utah said. "Some I think are dumbass questions, between you and me. I am not kidding you. I mean, as much as I love and respect you, I just think that's true."
A stunned Schumer asked if he heard the chairman correctly, to which Hatch said yes. Again, Schumer asked Hatch if he would like to "revise and extend his remark," congressional speak for change his mind.
A former trial attorney, Hatch replied: "No, I am going to keep it exactly the way it is. I mean, I hate to say it. I mean, I feel badly saying it between you and me. But I do know dumbass questions when I see dumbass questions."
The nervous laughter that accompanied the exchange belies the growing tension over the confirmation process.
While Roberts, a respected lawyer nominated for the D.C. Circuit Court of Appeals, is likely to win Senate approval, Democrats fear the conservative 48-year-old with 39 cases before the Supreme Court under his belt, may one day be nominated to sit on that bench.
For that reason, Sen. Dick Durbin of Illinois demanded Roberts' view of Roe v. Wade, the 1973 high court ruling that legalized abortion.
"I'll be bound to follow the Supreme Court precedent regardless of what type of constructionist I might be," Roberts replied to Durbin's question.
The muted battle over Roberts' confirmation is part of a larger war that Democrats are waging over other Bush nominees to the federal appellate courts, including Washington lawyer Miguel Estrada, whose nomination has stalled amid Democratic filibustering.
The filibustering effectively prevents the nominees from getting approved without 60 Senate votes. Democrats have vowed more of the same for nominees Priscilla Owen of Texas and Charles Pickering of Mississippi, both eyeing seats on the 5th Circuit Court of Appeals.
The White House has cried foul against the whole process.
"The Constitution is clear. A majority is required to confirm judicial nominees. A minority of Senate Democrats are effectively changing the law with their obstructionist tactics," said White House Press Secretary Ari Fleischer.
Republicans are also frustrated with their own Senate leader Bill Frist, saying he is not making Democrats feel enough pain for their blockage of Bush nominees. That impression has been fostered by remarks like one Wednesday by the Senate's top Democrat, who was asked whether he has yet seen any evidence of payback for the filibusters.
"No, I have not," said Senate Minority Leader Tom Daschle, D-S.D.
Thursday's vote to end debate on Owen is likely to end in failure for Republicans, leaving the Texas Supreme Court justice's nomination in limbo.
That likelihood has prompted some Republicans to rethink the confirmation process. Sen. Kay Bailey Hutchison, R-Texas, on Wednesday suggested a rule change that would prevent filibusters in exchange for preventing another technique of putting "holds" on nominees. A frequently used technique, "holds" enable one senator to object privately to a nominee. That was a maneuver Democrats complained Republicans used frequently during the Clinton administration.
Hutchison's proposal, however, would require approval of two-thirds of the Senate, which is unlikely to happen.
For his part, Schumer is proposing the creation of nominating commissions in every state and Washington, D.C., and for each circuit court comprised of equal numbers of Republicans and Democrats that would recommend one nominee to the president. The president could then forward the nominations to the Senate for confirmation.
"By forcing every selection to be bipartisan, we maximize the prospect of achieving balance and moderation on the bench. Very few extremists on either side will get through," Schumer said in a written statement.
A third suggestion comes from Sens. John Cornyn of Texas and Mark Pryor of Arkansas, who are asking Senate Majority Leader Bill Frist, R-Tenn., and Daschle to change the confirmation process altogether. Cornyn has pledged to hold a hearing in his Judiciary subcommittee next month to discuss the alternatives.
Fox News' James Rosen and Elizabeth Boswell contributed to this report.