Fight Over Filibusters

This is a partial transcript of "Special Report With Brit Hume," May 20, 2005, that has been edited for clarity.

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JIM ANGLE, GUEST HOST: It happened about 2:30 this afternoon Eastern time, the first step toward an historic showdown in the Senate, now set for next Tuesday. Senator John Cornyn filed for closure and end to debate over the nomination of Priscilla Owen (search) to an appeals court seat. And now the last-minute jockeying begins.

For an analysis of what's happening and what it will mean, we're joined by George Washington University law professor Jonathan Turley.

Jonathan, thanks for joining us again.

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY: Thank you.

ANGLE: Let me ask you first, what are the prospect that this confrontation can be avoided?

TURLEY: Well, I think there is a real chance here. The numbers are very close. Both sides are a hair's breath away from victory. We have a number of Republicans that have already indicated either they will vote with the Democrats or are inclined to do so, that includes some of the more senior Republicans.

Neither side can be absolutely sure at this point. And that's usually when they see compromises come in. But the devil is in the details. I mean, part of the problem is who gets shot, who gets confirmed. The other problem is, it doesn't address the thing that's driving a lot of this, which is the Supreme Court and the expectation of a nomination.

ANGLE: Well, in fact, Senator Byrd said yesterday, I believe, that this whole fight was just about clearing the brush for a Supreme Court nomination.

TURLEY: You know, frankly, I think a lot of it is. That's the looming presence here. And I think the feeling of people like Karl Rove is, if there's pain to be felt, let's feel it now, and not when we have a nominee on the floor.

ANGLE: Right. Yes. Now, that's not a bad strategy. Now, Senator Lamar Alexander, Republican from Tennessee, today got up on the floor. And let's listen to what he said.

(BEGIN VIDEO CLIP)

SEN. LAMAR ALEXANDER (R), TENNESSEE: I have pledged — I did this two years ago — to give up my right to filibuster any president's nominee for the appellate courts, including the Supreme Court of the United States. If five more Republicans and six Democrats did that, there could be no filibuster and there would be no need for a rules change.

(END VIDEO CLIP)

ANGLE: Very simple.

TURLEY: Well, there wasn't a rush of Democrats to say, "Why didn't we think of that?" It sounded a lot like a concession, you know, don't kill the rule, just don't filibuster.

ANGLE: Well, and that's the difficulty with the compromise, right? The Democrats want the Republicans to swear they will never resort to the nuclear — or as the Republicans call it, the Byrd option — since he has done this before — and the Democrats don't want to give up their right to filibuster.

TURLEY: That's right. And it's a zero-sum game, as they say. Neither side can really give too much. But I think what you're also seeing is a lot of these senators are beginning to look at polls that are really — I think both oxes are being gored here. People are beginning to lose their faith in Congress, and that's not just Republican or Democrat.

ANGLE: Now, the idea of an up-or-down vote doesn't seem that radical. That's majority rule. But Senate Democrats make it sound like it's the end of Senate life as we know it, even though, in the mid-late-'90s, a number of Democrats voted to end the filibuster, saying that it was a horrible thing because it blocked the Senate and kept people from getting an up-or- down vote. At that point, the Republicans were on the other side of this.

TURLEY: Oh, it's amazing. It's like a Claude Raines impersonator conference. Everyone is shocked — shocked — by what you're saying. And it really is funny, because they have totally flipped on both sides. And they're saying it with such passion and conviction.

I mean, the fact is that the Senate will survive, but it will also be changed. But that change has been long in coming. The Senate is beginning to feel that red state-blue state politics is losing some of that collegiality. And I think there is something to the fact that, if you shoot the filibuster rule, there is going be a lot of knives out.

ANGLE: Now, there a lot of people who say — the Democrats say these nominees are extremist judges. And for instance, they point to Janice Rogers Brown. Now, Janice Rogers Brown won her last election to the high court in California by like 79 percent in San Francisco, where John Kerry won about 83 percent of the vote.

Now, are we to believe that this many people who voted for John Kerry also voted for someone the Democrats would characterize as a right-wing nut?

TURLEY: Well, I actually think people are wrong about Justice Brown. The fact is that she has made some inflammatory statements, but those have tended to be in speeches. And I also...

ANGLE: Not in decisions?

TURLEY: That's right. And when I look at her decisions, I didn't see someone who was not willing to yield to legislative intent or to a higher court. And when it comes to her statements outside of the courtroom, you know, she's bucking the trend.

We're increasingly getting these vanilla-flavored nominees who have never had a creative thought or a creative statement. It's not so bad to have people that challenge the norm in speeches. It's what she does in the court that's important, that's the measure.

ANGLE: Now, yielding the legislative intent, that is really the key to this whole issue, is it not?

TURLEY: It is. It is. And, yes.

ANGLE: There is an issue with Priscilla Owen, as well. And I want to play you — there's been a long-standing debate over her decision in a case that involved parental notification on minors seeking abortion. And Judge Gonzales, who was with her on the court at the time in Texas, gave an explanation today about an allegation that he has always accused her of judicial activism.

Here's what he said.

(BEGIN VIDEO CLIP)

ALBERTO GONZALES, U.S. ATTORNEY GENERAL: The Texas legislature passed a parental notification case in connection with abortions involving minor daughters. The legislature didn't make the parental notification right absolute. They provide an exception, that is that you could go to a court and get a judicial bypass, if you could show three things.

And one of the things that the Texas legislature said would be an exception to having provide notice to a parent was if a minor could show a judge that she was mature and sufficiently well-informed. I looked at the case, looked at the way the statute was constructed, and made a decision that the legislature intended that exception, that bypass, to be a meaningful one, to be a real one.

And that to construct the statute in a way that didn't respect that legislative decision, I felt would be an act of judicial activism. I was referring to my own interpretation of the statute. I was not referring to the writings or positions of other judges on the court who wrote in dissent.

(END VIDEO CLIP)

ANGLE: Now, that gets at this whole issue that he accused her of judicial activism. Now, whether he did or didn't, I mean, this gives you some idea of why it is so difficult to go back, take a single case, take a single decision, or some writings on that decision, and say, "A ha, we now know exactly what kind of judge this is."

TURLEY: Well, I think too much has been made out of this case. Although, I have to say that I think that the attorney general's explanation is the world's most colossal spin. I do not see how you could really seriously argue that.

But you know, I think too much has been made out of that one snippet. There is some ground to question whether Owen works too hard to avoid following legislative intent that does not comply with her view. I think that's a debatable issue. But the question here is, is that sufficient for a filibuster or rather a negative vote?

ANGLE: Well, and there are some people the president has proposed who would be struggling to get a majority vote. And a lot of people say, "Hey, give them a vote. If they lose, they lose. If they win, they win."

TURLEY: I think that's right. And I also think that some of the filibuster fights have been grossly unfair. A good example is Pryor who has also been filibustered. Here's an individual who actually took a position that was demonstratively against his personal view, enforcing Judge Roy Moore off the bench. And he did it because he had to do it. And I think that shows yielding.

ANGLE: OK, good. Jonathan Turley, thanks for joining us.

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