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Friday, December 8, 2023

Filibuster Battle Ends…For Now

Judicial nominee Priscilla Owen gets the vote she's been awaiting for more than four years, the most immediate beneficiary of a deal worked out by Senate moderates to avoid a debilitating fight over filibusters.

Judicial nominee Priscilla Owen gets the vote she’s been awaiting for more than four years, the most immediate beneficiary of a deal worked out by Senate moderates to avoid a debilitating fight over filibusters.

The Senate was voting Tuesday to end debate on Owen, currently a Texas Supreme Court justice, clearing the way for her to gain a seat on the 5th U.S. Circuit Court of Appeals, based in New Orleans. With the threat of a filibuster by Democrats removed, she was nearly certain then to get the simple majority vote needed to give her the seat that long has eluded her, perhaps as early as Tuesday.

The agreement, crafted over the past several weeks by seven Republicans and seven Democrats, also opened the way for yes-or-no votes on two other of President Bush’s judicial picks who have been in nomination limbo for more than two years _ William H. Pryor Jr. for the Atlanta-based 11th U.S. Circuit Court of Appeals and Janice Rogers Brown for the U.S. Court of Appeals for the District of Columbia Circuit.

The agreement, which applies to Supreme Court nominees, said future judicial nominations should “only be filibustered under extraordinary circumstances,” with each Democratic senator holding the discretion to decide when those conditions had been met.

But of greater import, the deal on the rights of the minority party to filibuster judicial nominees avoids a showdown that could have shaken the traditions of the Senate, weakened the powers of the minority and threatened the comity the Senate needs to function.

And there were other political implications, as well, including the shape of the Supreme Court, the midterm election in 2006, Bush’s legislative agenda and the next presidential race, especially the prospects for Senate Majority Leader Bill Frist of Tennessee and potential GOP rival Sen. John McCain of Arizona.

“We tried to avert a crisis in the United States Senate and pull the institution back from a precipice,” said McCain, who led the compromise effort with Sen. Ben Nelson, D-Neb.

Frist, who had joined with party conservatives in pressing for an end to judicial filibusters, stressed that he was not a party to the agreement. He said he hoped it would end a “miserable chapter in the history of the Senate,” but said that what he called the “constitutional option” was still on the table. He said he “will monitor this agreement closely.”

Minority Leader Harry Reid, D-Nev., who had threatened to bog down Senate business if Republicans took away the filibuster authority, was more receptive, saying the Senate could now get back to work on the needs of the nation. He said he was willing to work with Bush on his agenda, “but he should have a little more humility.”

“In light of the spirit and continuing commitments made in this agreement,” Republicans said they would oppose any attempt to make changes in the application of filibuster rules. But Sen. Mike DeWine, R-Ohio, said the agreement was conditional on Democrats upholding their end of the deal.

The White House said the agreement was a positive development.

“Many of these nominees have waited for quite some time to have an up or down vote and now they are going to get one. That’s progress,” press secretary Scott McClellan said.

A battle over judicial nominations that began in Bush’s first term had been headed toward a climactic conclusion Tuesday with Frist planning to employ what both sides came to call the “nuclear option” because of its potentially disruptive effects.

Had the Democrats used their filibuster powers again to stop Owen, Frist would have sought a ruling from the chair, approvable by a simple majority, that filibusters should not be allowed to obstruct judicial nominations. Vice President Dick Cheney, as president of the Senate, was prepared to take the chair Tuesday to break a tie vote.

Unlike the House, where the majority rules, the majority in the 100-seat Senate must at times gain 60 votes to proceed on legislation over the objection of the minority. Republicans, with 55 seats have had difficulty reaching that threshold against united Democratic opposition.

Frist and most other Republicans said judicial nominees deserved a straight up-or-down vote, and accused the Democrats of unprecedented abuse of their filibuster power in blocking 10 circuit court judge nominees in Bush’s first term.

Democrats countered that Frist’s action would fundamentally undermine minority rights. Equally important, they worried that it would give Bush and his Republican allies free rein to place anyone of their choosing on the Supreme Court if, as expected, there are vacancies in the near future.

Under the terms of the agreement, Democrats said they would allow final confirmation votes for Owen, Brown and Pryor, three nominees all assailed by Democrats for what they say has been their conservative activism. There is “no commitment to vote for or against” the filibuster against two other conservatives named to the appeals court, Henry Saad and William Myers.

Apart from the judicial nominees named in the agreement, Reid said Democrats would clear the way for votes on David McKeague, Richard Griffin and Susan Neilson, all named to the 6th Circuit Court of Appeals.

The 14 signers, while a small minority of the Senate, hold enough leverage to stop future filibusters or block any attempt to impose new procedures for judicial filibusters.

Dr. James C. Dobson, head of the Focus on the Family, one of the conservative groups that had made an end to judicial filibusters a top priority, said the agreement “represents a complete bailout and a betrayal by a cabal of Republicans and a great victory for united Democrats.”


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