WASHINGTON—When the Senate reconvenes Monday for its looming partisan showdown over judicial nominees, the outcome will hinge on whether a small bipartisan group of senators can strike a compromise unlike any they have ever negotiated before.
To succeed, at least five Democrats and six Republicans must agree to resist their respective party leaders and pressure groups and instead form a bipartisan pact built on a commodity rare in Washington politics today—trust.
Their talks, which began in earnest this week, have put these senators in a political pressure cooker. Many of their colleagues privately wish them Godspeed, hoping to avoid an unpleasant vote. But partisans on both sides argue that any deal will weaken their side's hands by giving up important points of principle, and some powerful interest groups are vowing retaliation against compromisers.
Yet compromise is the essence of politics in a diverse democracy and long was the coin of the realm in Congress.
"It's time for some group to stand up on the floor of the Senate and shout, `Stop the madness!'" said former Sen. John Breaux, a Louisiana Democrat and well-known dealmaker who has talked to several of the negotiators.
They seek an agreement that will forestall Republican Majority Leader Bill Frist's effort to curtail the Senate tradition of unlimited debate, especially as used by Senate minorities to block action, a tactic called a "filibuster."
To agree, the negotiators must first convince each other that each will act in "good faith" in the future and that his or her judgment will be personally honest, not simply political.
Over the past four years, Democrats have used the filibuster to block votes on 10 of President Bush's 45 nominees to federal circuit courts of appeal. Earlier this year Bush re-nominated seven of the 10 judges that Democrats had blocked. They threaten to continue to block all seven. It takes 60 votes to shut off a filibuster, and Republicans number only 55.
Frist wants to eliminate the use of filibusters on judges, but to change the 60-vote requirement under Senate rules would require 67 votes, more than he can muster. So he's threatening to go around Senate rules by amassing a simple 51-vote majority declaring filibusters out of order on judicial nominations.
His maneuver has come to be called the "nuclear option" because Democrats threaten to disrupt the work of the Senate if he prevails. Frist would fail if six or more Republicans vote against him.
The Republicans negotiating for a compromise want to respect the Senate's tradition of the filibuster, but they also want some assurance that Democrats won't use it much. They need at least five Democrats to agree not to support filibusters as a rule. That would be enough to deny Senate Democratic Leader Harry Reid, D-Nev., the 41 votes he needs to mount an effective filibuster.
The negotiators are an eclectic ensemble. Their talks have mostly taken place in the offices of Sen. John McCain, R-Ariz.
They include two of the longest-serving senators, whose presence lends the group great stature in the Senate: Robert C. Byrd, D-W.Va., first elected in 1958, and John Warner, R-Va., elected in 1978. There's also at least one freshman, Ken Salazar, D-Colo.
Other Republicans include Maine's two moderates, Susan Collins and Olympia Snowe; Mike DeWine of Ohio, Lindsey Graham of South Carolina and Lincoln Chafee of Rhode Island.
Among the Democrats are Ben Nelson of Nebraska, Mark Pryor of Arkansas, Mary Landrieu of Louisiana and Kent Conrad of North Dakota.
Their meetings occur behind closed doors. Once on Thursday they called for a copy of the Constitution because they wanted to check whether the founding fathers, in writing Article II, used the word "advice" or "advise" to define the Senate's role in judicial nominations. (It's advice, as in the president "shall nominate, and by and with the advice and consent of the Senate...")
"You build your trust with one another to know that if you enter into an agreement, that you feel you can strongly trust the people on the other side," Nelson said. "When you get 10 senators in a room, you get at least 11 opinions. It's difficult to keep the concentration. The general guidelines are, `Don't give up the store.'"
The negotiators face two difficulties. First, they must agree on which of Bush's judicial nominees they will let be confirmed without a filibuster. Talks so far have centered on letting four or five of the seven go forward, but no final agreement has been reached.
Stickier is how to deal with future judicial nominees, particularly one for any vacancy on the Supreme Court. Democratic negotiators want to retain the right to use the filibuster in an "extraordinary circumstance," but want Republicans to promise not to support the nuclear option through 2006 under any circumstance.
"The real thing is how do we bring about the trust that the Senate used to operate under," Breaux said. "It has to be based on good faith. But there has to be a mechanism that if people walk away from their agreement," each side is free to vote with their party majority.
Back in their home states, these senators face a media blitz from religious conservatives urging them to vote with Frist and from liberal groups insisting they vote against him. Their offices are under e-mail assault.
But one senator said they're beyond such pressure tactics.
"They're calling my office a lot," DeWine said. "Does that impact what's going inside the room? I don't think so. I mean, if it affects you, people wouldn't be inside the room."
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(EDITORS: In second graf, reference to 5 Democrats is CQ; 60 votes ends a filibuster, so 41 votes are needed to sustain one. Of 44 Democrats and one Independent voting with them, 5 dissident Democrats could halt a Democratic filibuster. Similarly, 6 is correct for Republicans, who have 55 Senate votes and need 50 voting in favor of a rules change to prevail. As presiding officer of the Senate, Vice President Dick Cheney would provide the tie-breaking vote.
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(c) 2005, Knight Ridder/Tribune Information Services.
ARCHIVE PHOTOS on KRT Direct (from KRT Photo Service, 202-383-6099): John Breaux, Mike DeWine
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