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Supreme Court vacancy puts pressure on Senate deal-makers

WASHINGTON—With Justice Sandra Day O'Connor's retirement, Democrats and Republicans dusted off their weapons of choice—the filibuster and the "nuclear option"—in case they feel a need to block or clear the way for the nominee to succeed her.

O'Connor's retirement is destined to cause a contentious debate in the Senate because her replacement is almost certain to alter the delicate balance she maintained on the court. Replacing O'Connor, in fact, is likely to cause more fireworks than would replacing Chief Justice William Rehnquist, a member of the court's conservative wing.

The vacancy puts the spotlight anew on seven Democrats and seven Republicans in the Senate who brokered an agreement in May that averted a partisan showdown over judicial appointments.

It also will test President Bush's relations with the Senate and whether he'll take the advice of those 14 senators to consult with Democrats and Republicans before he announces a nominee.

Pressure could be especially strong on the seven Democrats, who agreed that they wouldn't block judicial nominees except in an "extraordinary circumstance." No doubt, that phrase will be put to the test. The deal didn't define the term so it becomes a standard for each senator to determine.

Sen. John Warner, R-Va., one of the 14 who brokered the deal, called on Bush to select a consensus candidate not only to avoid a partisan fight, but also to foster national unity.

"This nation of ours is troubled today and somewhat divided—the war on terrorism and other strong issues," Warner said. "And this nomination of the first Supreme Court justice by this distinguished president gives him an opportunity to be a uniter, not a divider."

Both Democrats and Republicans said they wanted to avoid repeating the showdowns over 10 of President Bush's circuit court nominees during his first term. Democrats blocked those nominations using a filibuster, a parliamentary delaying tactic that requires 60 out of the 100 senators to overcome.

When Bush asked the Senate again to confirm seven of those 10 nominees this year, Senate Majority Leader Bill Frist, R-Tenn., threatened to use his own tactics to eliminate filibusters on judicial nominations. That plan, considered a last resort that could devastate Senate traditions, was labeled the "nuclear option."

Earlier this week, Frist said he hoped that the agreement by the 14 senators had placed the filibuster and nuclear option "back in their cages."

But Sen. Mark Pryor of Arkansas, one of the seven Democrats in the deal, warned if Bush names a "very, very conservative nominee" and doesn't seek advice from the Senate, some of the seven Democrats could view that as an "extraordinary circumstance" that would trigger a filibuster.

"The more that President Bush and the White House consults with the Senate, particularly the Judiciary Committee, the less likely it is there will be a filibuster," Pryor said.

The issue of abortion figures to be a significant factor in the confirmation process and is likely to fuel the tug of war between conservative and liberal groups. Edward Kennedy, D-Mass., a leading Senate liberal, said he wouldn't apply an abortion "litmus test" on the nominee, but that "I will not vote for someone unless they demonstrate, before the Judiciary Committee, a core commitment to the fundamental constitutional values of the Constitution, and they include a variety of different rights, including privacy."

In the end, the focal point in the Senate will be the deal-makers who stopped the meltdown.

"I'm optimistic that the president will not send over someone who reaches the extraordinary-circumstances level," said Sen. John McCain, R-Ariz., one of the 14. "We only made an agreement with seven Democrats ... so it's their view that matters, not that of—in all due respect—their more liberal colleagues."

In addition to Warner and McCain, the agreement affects Republican Sens. Lindsey Graham of South Carolina, Mike DeWine of Ohio, Olympia Snowe and Susan Collins of Maine, and Lincoln Chafee of Rhode Island. Democrats in addition to Pryor are Robert Byrd of West Virginia, Ben Nelson of Nebraska, Mary Landrieu of Louisiana, Ken Salazar of Colorado, Joseph Lieberman of Connecticut and Daniel Inouye of Hawaii.

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

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