WASHINGTON – After several years of being in legislative limbo, the first of President Bush's contested judicial nominations will get an up-or-down vote before the Senate on Wednesday.
Senators on Tuesday voted to invoke cloture — or an end to debate — on the nomination of Priscilla Owen (search) to a seat on the 5th Circuit Court of Appeals (search) in New Orleans. The vote was 81-18 to proceed toward a final confirmation vote, which is expected to take place at 12 p.m. ET on Wednesday.
Owen, currently a member of the Texas Supreme Court, met with President Bush at the White House on Tuesday. Bush nominated Owen in May 2001, but her nomination was held up for four years because of Democratic arguments that she is too out of the mainstream for the federal bench. While at the White House, Owen thanked Bush, Senate Majority Leader Bill Frist (search) and Texas Republican Sens. John Cornyn and Kay Bailey Hutchison for backing her throughout the dispute.
"She has waited for over four years, she has shown such restraint and patience and real guts and I'm really pleased for her because she will be confirmed today," Hutchison told FOX News on Tuesday.
Earlier in the day, Bush also expressed his satisfaction that his judges will get confirmation votes.
"Yesterday, there was some progress made," Bush said Tuesday in Rochester, N.Y., where he was talking up his Social Security agenda. "I'm pleased that the Senate is moving forward on my judicial nominees who were previously being blocked. These nominees have waited years for an up-or-down on the Senate floor, and now they'll get one."
Because of a compromise reached by moderate senators from both parties Monday night, the Senate has averted an immediate crisis that threatened to bring its business to a halt. But even with the deal, which allows for selected judges to move through the system, many Republicans are still pushing for votes on nominees who are not part of that agreement.
Democrats agreed to allow final confirmation votes for Owen, Janice Rogers Brown (search) and William Pryor (search), who were all named to appeals court seats. There is "no commitment to vote for or against" the filibuster against two other conservatives named to the appeals court, Henry Saad (search) and William Myers (search).
The agreement signed by 14 senators said future judicial nominees should "only be filibustered under extraordinary circumstances," with each Democratic senator holding the discretion to decide when those conditions had been met.
Republicans said they would oppose any attempt to make changes in the application of filibuster rules.
"I don't like it. I think we should have an up-or-down vote on all of these fine individuals," Hutchison told FOX News. "I do think, however, that it's not over. I do think there will be a chance some of these others [nominees] will be in that same position ... it's good news for three people who have waited patiently and who have not been treated well but it's not a principled decision. … Democrats need to keep their word."
Sen. Trent Lott, R-Miss., said he was holding responsible Sen. John McCain (search), R-Ariz., a chief negotiator for Republicans, to be the "enforcer" of the deal.
"McCain is the enforcer. ... I've already said to him you've got to make sure this works. The devil's not in the details, the devil's in the implementation," Lott said.
While the deal was promoted as a trust-building exercise for the Senate, Minority Leader Harry Reid called it a victory for Democrats seeking to stop "Republican abuse of power" and did not rule out using the filibuster option on future nominees.
"There is nothing in anything that was done last night that prevents us from filibustering extreme (nominees), whether it's on the district court, appellate court or Supreme Court," he said.
But Frist on Tuesday said the so-called "nuclear option" is by no means history if the Democrats continue their "routine obstruction" of judges. The "nuclear option," called the "constitutional option" by Republicans, is what Frist threatened Democrats with in order to halt filibustering of judicial nominees so that the nominees could get an up-or-down vote.
"The constitutional option remains on the table ... I will not hesitate to use it if it's necessary, it will be used as a last resort," Frist vowed.
The majority leader noted Tuesday he had not been a party to the deal, which fell short of his stated goal of winning yes-or-no votes on each of Bush's nominees.
"I do believe that the memorandum of understanding makes modest progress and that three individuals will get up-or-down votes from the floor of the United States Senate but to me, it does stop far short of guaranteeing judicial nominees a fair up-and-down vote they deserve — other nominees, nominees in the future," Frist said on the Senate floor Tuesday morning.
While the deal is a good beginning to end the "partisan obstruction we've seen over the last two years," Frist said, the other nominees also need a vote.
Reid responded by saying: "I'm disappointed there's still these threats of the nuclear option, it's gone, let's do the Senate's business."
Republicans balked at the idea that filibusters could still be used to indefinitely stall the judge votes in the future.
"The minority leader seemed to say filibusters are here to stay ... and the constitutional option can never be used," said Sen. Jeff Sessions, R-Ala. "That is not what's in the agreement and that's not what's in the hearts and minds of the majority members of this body."
The White House said the agreement was a positive development but did not fully endorse the deal.
"Our principle hasn't changed but the fact that they are moving forward on these nominees who have waited for years is positive and that is progress," White House spokesman Scott McClellan said Tuesday. "These nominees yesterday were being blocked by the minority and now the Senate will move forward on their nominations and we're confident that they will be confirmed."
Getting Down to Business
One Frist aide said it's possible the Senate could confirm both Pryor and Rogers Brown before they leave for recess on Friday; Republican and Democratic leaders will talk this week about making that happen.
Members of the Congressional Black Caucus scolded senators for making the deal, saying Rogers Brown and Pryor "have documented histories of opposing the rights of African Americans and of hostility to the broad mainstream of law and rights enacted by the Congress over the past 75 years."
Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said Tuesday that after Owen is confirmed, the Senate is also ready to move ahead with the cloture vote on Rogers Brown and Pryor. "There has been talk of moving ahead the Michigan judges, at least two of the three who are really not contested," he said, adding that other judges are also coming out of his committee for a full Senate vote.
"We're facing a situation where many courts, especially the Sixth Circuit, are in a judicial crisis, and now that this agreement has been reached, there's just no reason that there ought to be any further delay," Specter said.Frist, R-Tenn., said Tuesday he wants to sit down with Reid to also nail down when votes can be had on on the Bolton nomination, energy and highway bills.
Reid, who remains opposed to some of the nominees who will likely get approved for the bench, said other, less controversial judges should be voted on first. He also reminded Frist that the agreement did not alter the rights of the minority to lengthy debate, and in extraordinary circumstances, filibusters of controversial nominations.
"There are a lot of things we have to talk about with Bolton," Reid added.
Eye on the Supreme Court
The Supreme Court currently has no vacancies, but Chief Justice William Rehnquist (search), age 80, is battling thyroid cancer. He entered the Capitol Building Monday in a wheelchair on his way to the doctor's office.
Part of the deal announced Monday night was a clause that said senators can discuss with the president possible Supreme Court nominations; Democrats' biggest complaint seemed to be that Bush didn't consult with them when putting forth some of the more controversial names for the court.
"It's under the advise and consent clause of the Constitution; what we've been dealing with is the consent side," one of the negotiators, Sen. Ben Nelson, D-Neb., told FOX News on Tuesday. "We felt we ought to have something under the advise side as well — there ought to be more conversation back and forth. I'm not talking about capitulation, I'm talking about conversation."
Sen. Edward Kennedy, D-Mass., stressed that the minority party should not be "silenced" or "stampeded" in their disapproval of nominees.
"This agreement should convince the president to take more seriously the advise portion of the advise and consent … his nominees will be better off, the courts will be better off and the nation will be better off," the Massachusetts Democrat said.
"We have sent a strong message to the president — if he wants to get his judicial nominees confirmed, his selection needs to have the broader support of the American people."
Democratic National Committee Chairman Howard Dean (search) said the deal isn't necessarily a win for his party, however, until "we find out if the president consults with the Democrats" on future judicial nominees.
But many Republicans saw the deal as just another way to "kick the can down the road," and postpone another fight.
"Overall this is a major disappointment on principle," said GOP Sen. George Allen of Virginia.
"This so-called deal is disappointing for all of us who believe in the principle that persons should be accorded the fairness and due process of an up-or-down vote," Allen said. "Everyone should also clearly see that ultimately, nothing has been settled when a vacancy arises on the U.S. Supreme Court."
Apart from the judicial nominees named in the agreement, Reid said Democrats would clear the way for votes on David McKeague, Richard Griffin and Susan Neilson, all named to the 6th Circuit Court of Appeals.
Democratic officials suggested that two other appeals court nominees whose names were omitted — White House Staff Secretary Brett Kavanaugh and Pentagon lawyer William Haynes — would be jettisoned. Republicans said they knew of no such understanding.
FOX News' Julie Asher, Molly Hooper, Liza Porteus and The Associated Press contributed to this report.