WASHINGTON _The passionate intransigence of both major political parties in the Senate stalemate over a handful of judicial nominations is as much about the next election as it is about the next Supreme Court justice.
Both sides see election payoffs ahead. Republicans are labeling Democrats as obstructionists. Democrats are branding Republicans as arrogant power grabbers beholden to religious conservatives.
As the Senate heads into a historic showdown this week over the balance of power between its majority and minority parties, the national spotlight is focused on a little-understood parliamentary maneuver that last made headlines when Southerners used it to oppose civil rights legislation in the 1950s and '60s.
At issue is whether a minority of the 100 senators should be allowed to employ the Senate's tradition of unlimited debate—the filibuster—to prevent decisive votes on some of President Bush's judicial nominees. Republicans say no, Democrats yes.
With Supreme Court vacancies perhaps on the near horizon, the stakes are huge. The ideological bent of the court—and thus great questions of law and society—hangs in the balance. If Republicans prevail, they'll have an easier time confirming judges who, for example, think abortion rights are too permissive and church-state separation too restrictive. If Democrats succeed, they can force Bush to nominate more moderate judges.
Senate Majority Leader Bill Frist, R-Tenn., says Bush's judicial nominees deserve up-or-down votes, where a simple majority of the 100-member Senate could confirm or deny the appointments. To ensure that, Frist threatens to change traditional Senate rules so that a 51-vote majority could end a filibuster against a judicial nominee, and pledged Friday to hold a vote on the matter this week. It now takes 60 votes to shut down a filibuster. The Senate has 55 Republicans, 44 Democrats and one independent who usually sides with Democrats.
"If Senators believe a nominee is qualified, they should have the opportunity to vote for her. If they believe she is unqualified, they should have the opportunity to vote against her," Frist said Friday. "Members must decide if their legacy to the Senate is to eliminate the filibuster's barrier to the constitutional responsibility of all senators to advise and consent with fair, up or down votes."
Democrats argue that the seven judicial nominees they've blocked hold extreme views and the filibuster is the last defense against one-party rule. They say they want to retain the traditional power that political minorities have in the Senate and to protect the independence of the judiciary. Yet Senate Democratic leader Harry Reid of Nevada offered a compromise—to allow votes on four of the seven nominees—if Frist would drop his plan to change the filibuster rule. Frist rejected the offer Thursday.
Christian conservatives and other Republican allies are spending millions on ads calling for an end to judicial filibusters. They argue that the conflict is about fairness to Bush's nominees, fairness to majority rule and, ultimately, fairness in the judicial system.
In a radio broadcast Monday on Christian radio stations, James Dobson, the head of Focus on the Family, a conservative advocacy group, said the filibuster was "a way of keeping conservatives and those who have strong religious views, and certainly pro-life, pro-marriage and pro-family views, from ever serving. That's what's at stake here."
Liberal groups and other Democratic allies have replied in kind. On Thursday, the Democratic Senatorial Campaign Committee released an ad that links Frist's efforts to do away with the judicial filibuster to ethical questions swirling around House Majority Leader Tom DeLay, R-Texas.
"Frist and DeLay—gutting ethics rules, threatening judges, changing the rules as they go along, abusing their power," the ad says. "Frist and DeLay. Out of control."
Both parties claim to be bullish about their prospects. With several Republican senators undecided or uncommitted, the outcome is in doubt.
It's no accident that the two nominees whom First has chosen to bring up for votes this week are women. One, Janice Rogers Brown of the California Supreme Court, is an African-American with a compelling life story. The other is Priscilla Owen of the Texas Supreme Court. Republicans think Democrats will be put on the defensive by having to justify standing in the way of women gaining power, a trend that Democrats ordinarily champion.
The dispute over judges comes as Congress is entangled in other partisan squabbles over Social Security and ethics in the House of Representatives, and not long after it passed a bill intervening in the Terri Schiavo case. A Gallup poll taken May 2-5 found that the public's approval rating for Congress is 35 percent, the lowest in eight years; 57 percent disapproved of the job Congress is doing.
Some party tacticians on each side see election advantages ahead from this showdown.
Sen. Charles Schumer of New York, the chairman of the Democratic Senatorial Campaign Committee: "The only joy I take in this—and it's very little 'cause I think it's bad for the country—is the more this small group of extremists calls the shots, the better chance Democrats have of regaining the Senate in 2006."
Sen. George Allen of Virginia, who headed the Republican Senatorial Campaign Committee when the Republican Party gained Senate seats last year: "No matter where you went, the best way to fire up folks to get out and vote for our candidates was to talk about this obstruction on judges."
"I think it's bad for the institution. That's what bothers me," said Sen. John McCain, R-Ariz., who's said he'd vote against restricting filibusters. "I don't know how the American public will perceive this. We see mixed polls. One, they want every judge to have an up-or-down vote, yet they don't want to deprive the minority in the Senate the right to filibuster. I don't know how it plays."
(c) 2005, Knight Ridder/Tribune Information Services.
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