Friday, May 20, 2005 | 6:35 a.m.
WEEKEND EDITION
May 21 - 22, 2005
WASHINGTON -- For weeks Senate Minority Leader Harry Reid, D-Nev., thought he could reach a compromise with Majority Leader Bill Frist, R-Tenn., over judicial nominees and the "nuclear option."
"It was always better that you didn't have to go to trial," Reid, a former attorney, said.
But Frist and Reid abandoned compromise negotiations on Monday. Talks have continued among a bipartisan group of 12 to 15 senators, but barring an unlikely final-hour agreement, Tuesday will mark a monumental vote over Senate rules that observers say could change the institution forever.
"We're the one institution where the minority has a voice and the ability to check the power of the majority," Reid said in a speech last week. "Today in the face of President Bush's power grab, that's more important than ever."
At the center of the long-simmering controversy is a vote on Priscilla Owen, a Texas Supreme Court justice nominated by President Bush to serve on the U.S. 5th Circuit Court of Appeals. Democrats say her judicial philosophy is outside the mainstream; Republicans laud her as a highly qualified nominee.
Democrats used the filibuster, a tactic that can be used to delay a vote indefinitely, to block her nomination and nine other controversial nominations in the previous Congress. Republicans said Democrats defied tradition by blocking nominees who enjoyed majority support in the Senate.
Now Frist is poised to use a maneuver dubbed the "nuclear option" to prevent another filibuster and clear the way for a Senate vote on Owen and all Bush nominees. The maneuver would allow the Republicans to change a Senate rule requiring 60 votes to halt a filibuster to a rule requiring just 51 votes. There are 55 Republicans in the Senate.
Senate rules require a two-thirds vote to change a rule, but Republicans plan to use a simple majority to push the change through.
The Constitution requires the Senate to give the president "advice and consent" on judicial and other nominees. Republicans say that entitles nominees to an up-or-down vote.
Republicans see that as a constitutional mandate. They reason that because the constitution doesn't call for a supermajority, they can change the rules with 51 votes in this case.
Democrats, however, say the GOP is "breaking the rules to change the rules."
Frist will need 50 Republicans -- with Vice President Dick Cheney as a tie-breaker -- to trigger the nuclear option. He is likely but not guaranteed to have the votes. Four Republicans senators have vowed to side with Reid, and Reid said he is working on four others.
Asked about a possible weekend compromise, Reid was dismissive. Senators were going home, he said.
The Senate convenes again Monday morning. Tuesday, the vote on the nuclear option is expected.
In an interview with reporters Friday, Reid said had initially believed that the controversy was about appellate nominees. But he said he soon recognized it was about a Bush administration "that wants it all."
"If Republicans roll back our rights in this chamber, there will be no check on their power," Reid said in other remarks last week. "The radical right wing will be free to pursue any agenda they want. And not just on judges. Their power will be unchecked on Supreme Court nominees, the president's nominees in general and legislation like Social Security privatization."
But Republicans say they are merely trying to exercise their constitutional responsibility to offer "advice and consent" on White House nominees. All deserve a vote, they say.
"What are we to do when Senate and constitutional principles are abandoned for the first time in two centuries?" Sen. John Cornyn, R-Texas, asked.
Republicans have also brushed aside the notion that Republicans were clearing a path for a far-right-wing Supreme Court nominee. They noted that debates on controversial Supreme Court nominees have unfolded without filibusters. Sen. Johnny Isakson, R-Ga., cited Robert Bork and Clarence Thomas as examples. Bork was rejected and Thomas accepted by the Senate, which was then controlled by Democratic majorities.
Democrats have argued this week that the founding fathers intended a Senate that protects the minority party.
Who's right? "A little of both," said University of Richmond law professor Carl Tobias, who has closely monitored the debate.
But what's most salient in the debate is the specific language of Senate rule 22, which requires a two-thirds majority to make a rule change, said Tobias, who believes the nuclear option would damage the Senate.
Power grab
"It's really nothing but a power grab by the Republicans," said Tobias, a former UNLV law school professor.
Tobias quickly added that there had been "plenty of blame to go around" in the war of words that led to this week's showdown.
Reid said he believed that Frist has negotiated in good faith. But Reid said Frist was under pressure not to accept compromises, even as Democrats offered to allow votes on all but a few of the most controversial nominees. Frist is a "short-termer" whose presidential aspirations hurt his ability to cut a deal, Reid said. Frist is reliant on a conservative base that "won't let him breathe any fresh air," Reid said.
Frist repeatedly said Republicans were acting on a simple matter of principle that they could not cede in negotiations. "I've made it clear what the principle is, a fair up-or-down vote," Frist said.
Reid said Democrats in their negotiations made fair offers but could not offer to allow votes on all seven controversial nominees in exchange for the scrapping of the nuclear option, even though it might have preserved the filibuster for future fights.
"What we want is the nuclear option off the table," Reid said. "You can't declare victory by losing."
Reid said he was bolstered in his fight by recent polls.
"People really care about this issue," Reid said. "The vast majority of the American people are on our side."
Reid plans to use other procedural rules slow the business of the Senate if the nuclear option is used. Republicans say that is the reason it is called the "nuclear" option.
Reid said he is not concerned that the tactic could harm Democrats politically. He aims to use Senate rules to force attention on Democratic priorities, including an energy plan and health care.
Republicans have blasted Reid's plan, which could include limiting Senate committee meetings.
"Americans elected their senators to vote, not play games with the United States government," Republican National Committee spokeswoman Tracey Scott said.
The nuclear option ultimately will hurt Republicans, and Bush in particular, Reid said. Bush has been hurt by Republican involvement in the Terry Shiavo case and by the economy, the deficit, embattled House Republican Leader Tom DeLay, and an "intractable war" in Iraq, Reid said.
Free fall
"I think this administration is in free fall," Reid said. "I really believe that. This is just another point to show the arrogance of this administration."
Debate in the Senate last week was often repetitive, often passionate and at times colorful.
Sen. Christopher Dodd, D-Conn., a former Senate page whose father was a senator, on Friday argued that history won't remember the judges under debate, but it will remember how the nuclear option changed the Senate. The nuclear option will remove a tool that protects the minority and forces the majority to seek bipartisan compromises that benefit the nation, Dodd said.
Senators are only "temporary stewards" of the Senate where rules empower a majority -- but not a "tyranny of the majority," Dodd said.
"We ought to have more respect for this place, for the role it has played historically," Dodd said.
Sen. Charles Schumer, D-N.Y., stressed that Democrats had approved about 95 percent of Bush's judicial nominees. He likened the Republicans to a parent who would tell their child to go back to school and "break the rules and get 100" after the child brought home a 95 percent on a school assignment.
"We believe we have been more than fair," Schumer said.
To underscore the point, Schumer spent part of his debate time reading the names of the 208 Bush judicial nominees approved by the Senate.
Sen. Barbara Mikulski, D-Md., mourned the future of the Senate if the nuclear option were used. She said the chamber only functions when there is cooperation between senators of the both parties.
"We cannot let the Senate melt down," she said. "And we will melt down."
Republicans said Democrats were overstating their case.
"You would think that the end is near listening to some of this rhetoric," Cornyn said.
Senate Majority Whip Sen. Mitch McConnell, R-Ky., put it simply, "What we have here is a further effort to make it impossible to do the people's business."
Sen. Rick Santorum, R-Pa., took fire from liberal groups for saying Democratic rhetoric on the rule change was like "Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me? How dare you invade my city?' "
Later Santorum -- who said he meant no offense by the comment -- said the behavior of Democrats who filibustered the 10 judges in the last Congress was "beyond the pale." He said Republicans would take a stand Tuesday even though they did not want to have to use the nuclear option.
"This is a truly sad day," Santorum said. "It's been a sad week."
The Associated Press contributed to this story.
Benjamin Grove is the Sun's Washington bureau chief. He can be reached at (202) 662-7436 or by e-mail at [email protected].
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