May 19, 2005
Senate Democratic leader Harry Reid said Thursday that President Bush and Republican senators are trying to "rewrite the Constitution and reinvent reality" in their push to confirm controversial judicial nominees.
"The Senate is not a rubber stamp for the executive branch," Reid said. "Rather, we're the one institution where the minority has a voice and the ability to check the power of the majority. Today, in the face of President Bush's power grab, that's more important than ever."
Republicans are threatening to eliminate the Democrats' ability to use filibusters to block Bush's judicial picks, beginning with federal appeals court nominee Priscilla Owen.
Reid says that the Constitution does not require that judicial nominees get confirmation votes, allowing the minority to block them. Bush and other Republicans who argue otherwise "rewrite the Constitution and reinvent reality," he said.
Senate Majority Leader Bill Frist said he will call a vote next week on whether Republican senators are willing to let the minority Democrats continue to block the White House's judicial appointments through filibusters.
"The principle is that judicial nominees with support of a majority of United States senators deserve a fair up-or-down vote on the floor of the United States Senate," Frist said.
But while senators argue over Owen's nomination on the Senate floor, the driving force in backroom negotiations in the Capitol is how senators will treat a future Supreme Court nominee if a vacancy opens up in the next two years.
"This whole debate, for me, is about the Supreme Court," said Sen. Lindsey Graham, R-S.C., one of the Senate negotiators who scurried from office to office Wednesday trying to work out a deal that would avoid a showdown over whether to block the use of filibusters against judicial nominees. "What do you do with the next level? Can you get the Senate back to more of a normal working situation?"
Senate negotiators were to get back to work Thursday trying to find a compromise on confirming Owen and the seven other U.S. Appeals Court nominees. But while lower court nominees are at the forefront of the argument, the clear subtext of the debate is how the Senate will treat a future Supreme Court nominee from President Bush.
Republican leaders are concerned that Democrats want to enshrine judicial filibusters in the Senate so they can block a future Bush nominee to the nation's highest court, along with Owen and the six other lower court nominees they already have blocked using the parliamentary tactic that requires 60 votes to overcome.
While there are no current vacancies, Supreme Court watchers expect a retirement before the end of Bush's presidency. Chief Justice William Rehnquist, who is 80, is fighting thyroid cancer.
"When a Supreme Court position becomes open the issue will be, will it require 60 votes to approve a Supreme Court judge -- something that's never required -- or will it be a majority vote? Must we have a super majority?" said Sen. Sam Brownback, R-Kan.
But Democrats worry that Republicans want to get rid of judicial filibusters so the White House can use the Senate's GOP majority to ram through a nominee that Democrats will find extreme and objectionable. If such a move were to succeed, it would give the GOP full control over which nominees could be confirmed for lifetime judgeships since the party controls the White House and has a 55-44-1 majority in the Senate.
"If Republicans roll back our rights in this chamber, there will be no check on their power," Reid said. "The radical right wing will be free to pursue any agenda they want. And not just on judges. Their power will be unchecked on Supreme Court nominees, the president's nominees in general and legislation like Social Security privatization."
Senate centrists hope to avoid both options. If they can get 12 senators to agree to a deal -- six Republicans and six Democrats -- they can prevent Frist from banning judicial filibusters and keep Reid from filibustering Bush appointees.
Under the most recent Republican-crafted offer, Democrats would have to allow the confirmation of six Bush nominees: Owen, California Supreme Court Justice Janice Rogers Brown, former Alabama Attorney General William Pryor, as well as Michigan nominees Susan Neilson, David McKeague and Richard Griffin. The Senate would scuttle the nominations of Idaho lawyer William Myers and Michigan nominee Henry Saad, aides said.
But more importantly, both sides would have to operate on "good faith" when it comes to future nominations. Republicans would be bound not to ban judicial filibusters only if Democrats forswear judicial filibusters on court nominees except for extraordinary situations, aides said.
The aides spoke on condition of anonymity because the discussions are being held behind closed doors.
"If we can get through this week, really, get through these eight, I think calmer heads will prevail down the road and we'll have a better chance of dealing with the Supreme Court nominees in a traditional way," Graham said.