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Senate's judicial nominee compromise may be delaying inevitable

WASHINGTON—The Senate was a very different place Tuesday, the day after the deal that averted a showdown over judicial nominees.

How different? Priscilla Owen, first nominated in May 2001 to a federal appeals court only to be blocked four times by Democrats, sailed past another effort to block her on an 81-18 vote. She's expected to win easy confirmation Wednesday.

Despite that, the Senate's potential for eventual parliamentary Armageddon remains, perhaps just pushed ahead to an indefinite future.

By their Monday night deal, seven Democrats and seven Republicans allowed three previously blocked judicial nominees to proceed to confirmation votes, but the standard they set for judging future nominees is so gauzy and fragile that senators interpreted it many ways. Some predicted that the unity of the 14 would be tested soon, while others hoped the coalition heralded a new day.

"Don't overreact that this is a new coalition that's been formed," cautioned Sen. Trent Lott, R-Miss. "Whenever that coalition needs to be picked apart, we'll pick it apart."

The test could come as soon as next month if Senate Majority Leader Bill Frist, R-Tenn., asks for a vote on William Myers, whom Democrats blocked last year from a seat on the 9th Circuit Court of Appeals.

The seven Democrats who signed the deal made no commitment on whether they would vote to block Myers, and conservative activists pressed Frist to bring him up next to see how brittle the bipartisan group's unity might be.

Myers is a lawyer who has represented mining interests and argued against federal regulation of wetlands, health and safety.

For now, though, the group of 14 was standing firm, an unlikely alliance of moderates and mavericks, of relative newcomers and established old bulls.

Over the course of a week, they negotiated a deal whereby the Republicans among them agreed not to alter long-observed Senate rules governing debate and the Democrats consented to refrain from blocking judicial nominees except in "extraordinary circumstances."

Their deal spoiled an effort by Frist to change Senate rules by eliminating the filibuster, or endless debate, as a delaying tactic on judicial nominations. Senate rules require 60 of 100 votes to end a filibuster, and Republicans number only 55. Democrats have used the filibuster against 10 of Bush's appellate-court nominees.

Democrats had denounced Frist's effort to strip them of this weapon as the "nuclear option" and threatened to disrupt Senate business in retaliation, but the compromise struck by the 14 saved the day, for now.

"The Senate is back on its rails running," said Sen. John Warner, R-Va., a 26-year Senate veteran and a key figure in the closed-door talks. "Let each day speak for itself."

By Tuesday morning, all 14 were targets of wrath from left and right, dismissed as deal-happy politicians without principle. In the Senate, Democrats hailed the agreement as a victory, while some Republicans seethed.

"Moderation and reason have prevailed," declared Sen. Edward Kennedy, D-Mass.

Sen. John Cornyn, R-Texas, complained that the deal only delayed a showdown.

"What this agreement by these 14 senators does not do, it does not give any assurance that other nominees of the president—Mr. Myers, in particular, and others—will get an up-or-down vote that they deserve," Cornyn said.

Religious conservatives, eager to turn the Supreme Court and the rest of the federal judiciary more to their liking, seemed most upset, but some liberal groups also condemned the deal for giving court seats to three judges they vigorously oppose.

In addition to Owen, the other two are Janice Rogers Brown, a California Supreme Court justice nominated to the District of Columbia Circuit Court of Appeals, and William Pryor, the Alabama attorney general nominated to the 11th Circuit Court of Appeals.

"This is more of a capitulation than a compromise," Rep. Melvin Watt, D-N.C., said on behalf of the Congressional Black Caucus.

The agreement gives the 14 senators who signed it considerable sway. Their pledge to block nominees only in "extraordinary circumstances" is highly subjective. Members of the group declined Tuesday to define what the term meant to them.

The seven Republicans, meanwhile, reserve the right to support changing the rules—meaning the nuclear option—if they deem a filibuster not an "extraordinary circumstance."

Significantly, the agreement also calls on President Bush to consult with senators from both parties before submitting more judicial nominations. If Bush does that, it would further increase the sway of the 14 senators, because they ultimately could determine who faces a filibuster and who doesn't.

The 14 don't fit a single mold. Several said they wanted to avoid a Senate train wreck. Sen. Lindsey Graham, R-S.C., said he feared that issues such as the war in Iraq and overhauling Social Security would get mired in a dysfunctional Senate.

Warner said he viewed himself as "a trustee of this institution."

"My job here is to serve my country, my state and pass this institution on so that it is stronger for those who come behind and take my place some day. I'm clear of mind that that's what we did," Warner said.

And Sen. John McCain, R-Ariz., leader of the group's Republican faction, said he worried that Americans' view of Congress was reaching record lows.

"Americans are very unhappy from the polling I see," McCain said. "Fifty-eight percent of them said we're acting like spoiled children. That's great—at my age?"

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

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