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Senate continues debating judicial nominees, filibuster

WASHINGTON—Presidential power clashed anew Thursday with the traditions of the Senate, as senators completed a second day of partisan debate over President Bush's attempts to put his conservative stamp on the federal judiciary and limit the minority party's ability to thwart him.

A rump bipartisan group of senators continued trying to negotiate a compromise, and though they seemed to gain numbers, knotty problems still frustrated a deal. Participants late Thursday said no new negotiating session would be held until Monday.

Hanging over the Senate floor debate and the negotiations was the likelihood of impending vacancies on the Supreme Court, the first in 10 years, and Bush's ability to fill them without having to compromise with the Democrats.

Democrats have prevented 10 of Bush's 45 appellate-court nominees from getting confirmation floor votes by using the filibuster, a parliamentary maneuver that allows unlimited debate unless 60 of the 100 senators vote to end it.

By blocking 22 percent of Bush's nominees, the Democrats have made it clear that if a Supreme Court vacancy occurs, any nominee who's deemed too conservative is likely to face the same fate.

Senate Republican leader Bill Frist, from Tennessee, plans a showdown next week that would end filibusters against any judicial nominees. Senators call the move the "nuclear option" because Democrats threaten to blow up the usual routines of Senate business in retaliation if Frist prevails.

"To attempt to do away with the filibuster is nothing more than clearing the trees for the Supreme Court," said the Senate's Democratic leader, Harry Reid of Nevada. "They (Republicans) want someone who can skate through with only a bare partisan majority."

Democrats argued Bush could avoid a filibuster fight simply by consulting them and selecting nominees who are "mainstream" and could win bipartisan support.

Republicans challenged the legitimacy of the filibuster, arguing that its use to block judicial nominations was an abuse that denied nominees a fair up-or-down vote.

Sen. Rick Santorum, R-Pa., said that by demanding "mainstream" judges, Democrats were setting a new standard. He noted that the late Justice Thurgood Marshall, whom President Johnson nominated as the first African-American Supreme Court justice, might have been considered out of the mainstream in his time.

"So we're talking about the ideological mainstream," Santorum said. "See, there are a lot of judges who are not, quote, in the mainstream, depending on what stream you happen to be swimming in."

The issue before the Senate is the nomination of Priscilla Owen, a Texas Supreme Court justice who was nominated to a circuit court of appeals seat four years ago but filibustered by Democrats.

Of the 10 nominees Democrats blocked, Bush has renominated seven. Frist decided to focus the showdown on Owen and another female nominee, Janice Rogers Brown, the first African-American on the California Supreme Court.

Senators seasoned the floor debate Thursday with peripheral rallies and news conferences, with both sides calling on black ministers to support or assail Brown's nomination to the powerful District of Columbia U.S. Circuit Court of Appeals.

A group of long-serving Senate Republicans assembled to make the case that Democrats, not Republicans, were changing Senate traditions.

"What we're seeing now is unprecedented," Sen. Ted Stevens, R-Alaska, said Thursday. "Judicial nominees with clear majority support have never been denied a vote by a partisan filibuster until two years ago, and now we've got 10 qualified judges with majority support being held up."

To make their points, senators evoked history, poets, even pop culture. Sen. Robert Byrd, D-W.Va., the chamber's classical orator, quoted Lord Byron. Sen. Frank Lautenberg, D-N.J., found parallels in the latest installment of "Star Wars."

At one point Santorum said Democrats had the "audacity" to say Republicans were attempting to break the filibuster rule.

"It's the equivalent of Adolf Hitler in 1942 saying, `I'm in Paris. How dare you invade me? How dare you bomb my city? It's mine.'"

The reference to Hitler recalled a Byrd speech in March comparing Frist's "nuclear option" to Hitler muscling his program through the Reichstag, Germany's parliament, in 1933. Byrd's comparison spurred an outcry from conservatives as below the belt.

The influential Byrd joined an expanding group of centrist Democrats and Republicans negotiating over a compromise Thursday in the office of Sen. John McCain, R-Ariz. He later spent a few minutes privately with Sen. John Warner, R-Va.

If six Republicans and six Democrats cut a deal, they could deny their party leaders the support they need under Senate rules either to mount a filibuster or outlaw them.

However, a compromise appeared more and more elusive the longer the negotiations continued. Early in the day, Sen. Mike DeWine, R-Ohio, said that if a deal weren't struck by Friday, momentum toward one would evaporate. Later, however, he seemed more optimistic.

After one meeting, Warner said, "We're going to do some redrafting. Whenever redrafting takes place, I think it's progress."

Under the rough outlines of a deal, Democrats would pledge to use the filibuster only in "extraordinary circumstances." Republicans would agree not to vote for the "nuclear option," but they want some assurance that they could be released from that commitment if they find that a Democratic filibuster doesn't meet the "extraordinary circumstances" standard.

Pressed by Reid, the Democrats in the group won't cede that point. Asked if he's given Democrats a bottom line, Reid said: "No nuclear option."

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(c) 2005, Knight Ridder/Tribune Information Services.

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