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Renegade Senate Republicans hold power in judicial nominees fight

WASHINGTON—The outcome of a looming Senate confrontation over judicial nominees rests with a small band of uneasy Republicans who are reluctant to follow their leaders and force up-or-down votes on President Bush's contested federal court candidates.

They number fewer than a dozen and comprise an odd coalition that's part moderate, part maverick and part traditionalist. They include Senate veterans and relative newcomers, all worried that a clash that's come to be called the "nuclear option" would cause lasting damage to the Senate.

They also share a tepid if not frigid relationship with religious conservatives, an influential Republican bloc that's itching for a showdown with Democrats over Bush's judicial nominees.

Among this band of renegade Senate Republicans are northeasterners Olympia Snowe and Susan Collins of Maine, Lincoln Chafee of Rhode Island and Arlen Specter of Pennsylvania. Nonconformists John McCain of Arizona and Chuck Hagel of Nebraska also are included, as is 27-year Senate veteran John Warner of Virginia, who reveres the chamber's traditions.

Lisa Murkowski of Alaska and Gordon Smith of Oregon also are counted because they've voiced reservations about the showdown, though only McCain, Chafee and Snowe are considered sure votes against the Republican leadership.

With the confrontation expected any day this month, and perhaps as early as this week, these Republicans have the power to limit Bush's ability to reshape the federal judiciary. Most important, they could determine how aggressively Bush moves to change the balance of power in the Supreme Court should any seats there become vacant.

At stake is the ability of a Senate minority to halt confirmation of judicial nominees. During Bush's first term, Democrats blocked 10 of his 52 nominees for federal appellate courts, even though those nominees had the support of a majority of senators. Democrats did it with filibusters, a parliamentary maneuver of unlimited debate that requires 60 votes in the 100-member Senate to overcome.

With seven of the 10 blocked nominees now back before the Senate for confirmation, Majority Leader Bill Frist, R-Tenn., has vowed to end filibusters against judicial candidates once and for all. He would move to declare such judicial filibusters unconstitutional, a finding that could be upheld by a simple majority of senators.

Democrats are united in opposing Frist's attack. With 55 Republicans in the Senate, and Vice President Dick Cheney holding a tie-breaking vote, Frist can't afford to lose more than five Republicans.

The Bush White House typically counts on the Republican-controlled House of Representatives to hold the more independent Senate Republicans in check, but the Constitution gives the House no role in confirming judges. Only the Senate can confirm federal judges. That's why religious conservatives and the White House consider these potential renegade Republicans more serious obstacles to Bush than ever before.

Both parties are courting them heavily, but most remain uncommitted.

"The only resistance that's heard is the quiet resistance of those senators who have not yet said that they would endorse the nuclear option," said Sen. Charles Schumer, D-N.Y.

A powerful lobbying effort targets them.

"If this were a secret ballot, the nuclear option would lose by at least a 2-1 margin," said Ralph Neas of People for the American Way, a liberal group that opposes conservative judges. "The only reason this is close is because of the extraordinary pressure that (GOP leaders and the White House) are putting on senators."

Conservative faith-based lobbies such as Focus on the Family and other groups have launched an expensive ad campaign to convince fence-sitting senators to vote to shut off judicial filibusters. Last week, Progress for America, a conservative group, aired TV ads and commercials on Christian radio stations in Alaska, Maine, Nebraska, Rhode Island, North Dakota and Arkansas. The group plans a national ad campaign this week. People for the American Way responded with ads in the same states.

Their targets are Murkowski, Snowe, Collins, Hagel and Chafee, as well as a handful of "red-state" Democrats—Ben Nelson of Nebraska, Kent Conrad and Byron Dorgan of North Dakota and Blanche Lincoln and Mark Pryor of Arkansas.

"Do they want to be seen as obstructing the process?" said Tony Perkins, president of the conservative Family Research Council. He warned that if Republicans help defeat the anti-filibuster gambit, they will weaken Frist and embolden Democrats. "It gives those who would intentionally want to undermine his leadership a crack in the door," he said.

Conservative Christians have long objected to federal court rulings on school prayer, abortion and homosexuality. "They want more conservative judges to be appointed and they're looking forward to a battle over the Supreme Court," said John C. Green, an expert on religion and politics at the University of Akron in Ohio.

But religious conservatives have little influence on these Republicans.

McCain, for example, clashed with religious conservatives in 2000 when they worked in the South Carolina primary to defeat his candidacy for the Republican presidential nomination. Yet even as he considers a new bid for the presidency in 2008, he defies their stand on backing Frist.

"If McCain flakes, he can kiss the Republican primary goodbye in a number of Southern states," said Louis Sheldon of the Traditional Families Coalition.

But Marshall Wittmann, a former McCain aide, said that neither McCain nor his fellow GOP maverick Hagel needs to bow before religious conservatives. "The strategy of a Hagel or a McCain is that social conservatives will divide among themselves and provide an opening for a centrist," he said.

As for the northeasterners, Chafee, Snowe and Collins are among the most liberal Republicans in the Senate and have bucked the party leadership repeatedly on crucial votes. Religious conservatives aren't so powerful in their states; indeed, the three may enhance their stature at home by not yielding to them.

"I'm not sure that it would help a Republican candidate in Maine or Rhode Island or in Pennsylvania to run against Christian conservatives, but it wouldn't hurt," Green said.

As chairman of the Senate Judiciary Committee, Specter has had a direct hand in moving controversial nominees to the Senate floor. But religious conservatives dislike his moderate politics.

In a speech last month on the Senate floor, Specter urged his colleagues to buck their leaders and vote their consciences. He left little doubt about his reluctance to back Frist, but he also encouraged Democrats to vote for the judges to end the confrontation.

Warner is usually a loyal partisan, but he also reveres the Senate. "My fundamental thing emanates from my great respect for this institution, which could well be the last bastion of any type of legislative body where the rights of the minority are protected," he said, explaining his quandary.

He, too, has had a rocky relationship with religious conservatives, who are influential in Virginia politics. He cast a decisive vote against Supreme Court nominee Robert Bork in 1987 and refused to support two statewide GOP candidates backed by religious conservatives in 1993 and 1994, earning but surviving their wrath.

Murkowski and Smith defy easy labels. Murkowski has voiced a pragmatic concern; Democrats have said they would slow the Senate to a crawl if the "nuclear option" prevails, and Murkowski worries that a slowdown would delay energy legislation containing a provision long-sought by many in Alaska—permission to drill for oil in the Arctic National Wildlife Refuge.

Smith is a former Mormon bishop who represents Democratic-leaning Oregon. He's infuriated social conservatives by supporting gay issues and stem cell research, and he recently broke with his party by calling for smaller reductions in the growth of Medicaid spending. He said he's given Frist "a qualified yes" on the anti-filibuster vote, but echoing a sentiment common among those vacillating, he told the Oregonian newspaper: "I never want to cast this vote."

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

GRAPHIC (from KRT Graphics, 202-383-6064): SENATE JUDGES 20050506

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