Published May 23, 2005
WASHINGTON – While a dozen Senate lawmakers looked for compromise in a race against the clock, President Bush on Monday repeated his demand that his judicial nominees get an up or down vote by the full Senate.
"My job is to pick people who will interpret the Constitution, not use the bench from which to write laws," Bush said from the White House. "And I expect them to get an up or down vote, that's what I expect. And I think the American people expect that as well — people ought to have a fair hearing and they ought to get an up or down vote on the floor."
Conscious of a possible Supreme Court vacancy emerging while Bush is in office, the Senate was convening Monday and planning the end game in a showdown over whether the minority party has the right to filibuster (search) the president's judicial nominees.
Senate Majority Leader Bill Frist (search) told Democrats that unless they allow an up or down vote on the seven stalled nominees, he will invoke the so-called "nuclear" or "constitutional" option, by which filibusters on nominees will be banned for good.
"The moment draws closer when all 100 United States senators must decide a basic question of principle," Frist said as the rap of the Senate's gavel opened a scheduled day-and-night session, prelude to Tuesday's climactic votes. "Whether to restore the precedent of an up-or-down vote ... or to enshrine a new tyranny of the minority."
Sen. Chuck Grassley, R-Iowa, who supports invoking the nuclear option (search), told FOX News: "The Senate does not require 60 votes to become a judge, only 51 votes ... We're talking about keeping a supermajority from overriding the will of a constitutional majority that has been that way for 214 years."
But Democrats argue that Republicans are preventing senators from invoking their constitutional "advise and consent" role.
"That contempt for the rule of law, the law of rules, will set a new precedent — an illegal precedent — that will always remain on the pages of Senate history — a precedent that will thrust us toward totally eliminating the filibuster in all Senate proceedings, a precedent that will eliminate the essential deliberative nature of the Senate," Senate Minority Leader Harry Reid (search) of Nevada said during a commencement address at George Washington University's law school.
"A crisis is unfolding here in the Capitol that threatens some of our nation's founding principles," said Sen. Harry Reid, the party leader. "This isn't hype. This is as real as it gets," he said in remarks taped for a 90-second commercial paid for by an independent organization opposed to Bush's nominees.
Visual reminders of the battle appeared throughout the morning — Republicans shipped in cots in anticipation of the late-night debate to come while Democrats prepared a staging area from which to distribute petitions with signatures of Americans opposed to the nuclear option.
Meanwhile, six Democrats and six Republicans were planning to meet Monday evening before the scheduled showdown. Those working on a compromise say they're trying to figure out a way to protect the minority party and end any abuse of the filibuster.
"We're having difficulty coming up with exact language which would portray that desire. It's tough," Sen. John McCain, R-Ariz., told "FOX News Sunday."
A draft memorandum of understanding from Friday's negotiations said Democrats and Republicans signing the compromise would take several steps designed to avert a showdown "based upon mutual trust and confidence."
For Democrats, that meant agreeing to clear the way for final votes on six contested judges, including conservative Texas Supreme Court Justice Priscilla Owen (search). Two other nominees would not be guaranteed final votes.
In addition, the draft said future nominees to the appeals court and Supreme Court "should only be filibustered under extraordinary circumstances." Each senator would be permitted to decide when that condition had been met.
In the run-up to the evening meeting, one negotiator, Democratic Sen. Ken Salazar of Colorado, said that the chance of getting a deal was getting more and more remote.
Frist's timetable calls for the critical votes on Owen to be cast Tuesday and Wednesday.
It takes 60 votes to end a filibuster and proceed to a vote. Republicans gained four seats in the November elections, bringing the party split in the Senate to 55 Republicans, 44 Democrats and one independent.
While Republicans hold the majority of Senate seats, three members of the GOP rank and file have already announced plans to side with the Democrats. By most counts, that left the balance of power in the hands of a small group of GOP senators who remained publicly uncommitted — Sens. John Warner of Virginia, Susan Collins of Maine, Arlen Specter of Pennsylvania and Chuck Hagel of Nebraska.
Of that group, Democrats viewed Warner as most likely to side with them, and he has been active in compromise negotiations under way in recent days.
With a meeting scheduled for early evening, negotiators were focusing on a compromise covering the fate of several of Bush's current nominees as well as ground rules for considering future appointments.
Under a proposal outlined in a draft agreement last Friday, Owen would be cleared for a final confirmation vote, as would Janice Rogers Brown, William Pryor, Richard Griffin, Susan Neilson and David McKeague, all of whom have been named to appeals courts. There would be no such guarantee for William Myers and Henry Saad, two other nominees that Democrats have blocked.
As for future nominees, the draft said they should be filibustered only "under extraordinary circumstances," with each senator left to decide when that condition had been met.
At the same time, senators signing the agreement would pledge to oppose GOP efforts to change filibuster procedures, so long as the "spirit and commitment" to avoid filibustering had been met.
If the deal doesn't shake out, Republican leaders say they believe they have the votes to end the filibuster, but some are concerned about Democrats responding by shutting down the Senate.
With the deadline approaching for launching the nuclear option, Sen. Ben Nelson, D-Neb., suggested that "there may be enough [Democratic] votes for cloture on Owen," leaving the door open for continuing talks even if no deal is immediately reached.
However, by approving Owen, Frist could run into a logistical and strategic headache as the Senate leader would be left with no vote to prompt him to move to the nuclear option. A GOP source suggested to FOX News that that scenario could present problems as members were hoping to wrap up the judicial nominees issue before Memorial Day weekend.
If Owen were approved, Republicans would then be up against the clock, trying to bring up another nomination that they expect to be blocked and going through the whole nuclear option process with that nominee before the end of the week.
If it weren't possible to do all of that in the rest of this week, the GOP source said it's very possible the lag in time would present Republicans with more GOP defections in support for the nuclear option.
Sen. Joseph Biden, D-Del., who was present and voting at President Clinton's impeachment trial in 1999, called the looming filibuster clash "the single most important" issue to be decided in his 32 years in the Senate.
"Tomorrow, the Senate will decide whether to dramatically, and unilaterally unravel our constitutional checks and balances, our democratic system, and our fundamental principles," said Sen. Dianne Feinstein, D-Calif.
Sen. Robert C. Byrd, D-W.Va., spoke of "the preposterous solution of permanently crippling freedom of speech and debate and the right of a minority to dissent in the United States."
Republicans said it was otherwise.
Frist said the Senate had spent more time debating Owen than on all nine sitting justices of the Supreme Court combined, yet "she has not received one up-or-down vote."
Sen. Orrin Hatch, R-Utah, said allowing a minority of senators to block confirmation "hijacks the president's power to appoint judges."
Sen. Robert Bennett, R-Utah, said the Senate had always had the ability to reapply filibuster rules. "This is a time-honored Senate procedure," he said.
Not all was apocalyptic.
Off the Senate floor, Republicans and Democrats arranged for dueling screenings of "Mr. Smith Goes to Washington," a 1939 Hollywood classic about a filibuster waged by an idealistic young senator.
FOX News' Mike Emanuel and Julie Asher and The Associated Press contributed to this report.