WASHINGTON—Shortly before they convene for lunch Tuesday in the Capitol's ornate Lyndon B. Johnson room, Senate Democrats plan to vote against ending debate on the confirmation of Priscilla Owen as a federal circuit court judge. Even though they constitute a Senate minority, they likely will win, but perhaps only momentarily.
Under Senate rules, it takes 60 votes in the 100-member chamber to shut off debate. There are 44 Democrats, plus one independent who usually votes with them. If they hold firm, as expected, under Senate rules they can prevent Republicans from ending debate and forcing a vote on contested judges. But if Democrats do that, Republicans intend to end the 60-vote requirement by simple majority vote, contrary to Senate rules. There are 55 Republicans.
The Democrats' maneuver of extending debate rather than permitting a vote_ one they have used to block 10 of President Bush's judicial nominees—thus will trigger a historic partisan confrontation that could significantly alter how the Senate governs itself, strengthen Bush's ability to put a conservative stamp on the federal judiciary and shift the government's balance of power more in favor of the White House.
On Monday, the Senate debated all day and into the evening over Bush's judicial nominations. Custodians rolled cots into the Capitol in anticipation of an all-night session, scheduled to use up time before Tuesday's showdown vote.
Republicans framed the issue as letting the Senate do its duty.
"Nominees have been left in limbo, courthouses sit empty, justice is delayed, political rhetoric has escalated and political civility has suffered," said Senate Majority Leader Bill Frist, R-Tenn. "It is time once again to decide. ... I favor fairness and an up or down vote."
Democrats argued that the Senate was on the edge of dangerous precedent.
"Step back, step back, step back from the precipice," said Sen. Robert C. Byrd, D-W.Va. "Things are not right, and the American people know things are not right. The political discourse in our country has become so distorted, so unpleasant, so strident, so unbelievable."
The only lawmakers standing in the way of a climactic partisan showdown were about a dozen senators from both parties who met into the evening Monday in last-ditch hopes of negotiating a compromise.
Democrats used press conferences, a 90-minute television ad and a bit of real theater to make their case. Senators were invited to attend a midnight showing of Frank Capra's classic "Mr. Smith Goes to Washington," in which James Stewart portrays a callow senator who heroically carries out a one-man filibuster, or extended debate, to regain his good name.
Republicans and their allies arranged news conferences of their own, aired ads and even appealed to a higher power to get an edge on the vote. The Christian conservative Family Research Council, eager to get more socially conservative judges on the federal bench, e-mailed supporters asking them to "pray that no compromise will be allowed which will let this unprecedented use of the filibuster remain."
Bush weighed in at a White House press conference, saying he intended to nominate judges "who will interpret the Constitution, not use the bench from which to write law. I expect them to get an up or down vote. I think the American people expect that as well."
On Tuesday, the Republican script calls for a noon vote to end debate on Owen's nomination. Democrats, who have filibustered Owen three times before, are expected to succeed again in denying debate-enders 60 votes.
That will clear the way for Frist or one of his allies to call a point of order declaring that further debate would be "dilatory." The presiding officer—who's likely to be Vice President Dick Cheney, acting in his constitutional role as Senate president—would then rule in favor of the point of order.
A Democrat will appeal the ruling, arguing that it's contrary to Senate rules. Republicans will then move to table, or kill, the Democratic appeal. That would require a simple majority. Senators call this gambit the "nuclear option" because Democrats say it is so extreme an abuse of Senate rules that they will retaliate by disrupting the Senate's future work.
If 50 of the 55 Republicans vote with Frist, Cheney could break the tie in Frist's behalf. Thereafter, Democrats would be unable to filibuster against any judicial nominee.
Three Republicans have indicated they will vote against Frist: John McCain of Arizona, Lincoln Chafee of Rhode Island and Olympia Snowe of Maine.
Senate Democratic Leader Harry Reid of Nevada said Monday that he was confident he had six Republican votes against Frist's ploy—enough to defeat it. Among Republicans who have voiced doubts about Frist's plan are John Warner of Virginia, Susan Collins of Maine, Mike DeWine of Ohio and Arlen Specter of Pennsylvania.
Specter has scheduled a press conference Tuesday morning, at the request of the Republican leadership, with legal experts who support Frist's effort to eliminate judicial filibusters. However, an aide said Specter remained uncommitted.
"We don't think we're going to lose this vote," said Reid.
Republican leaders are equally optimistic in public.
Meanwhile, the week-old closed-door negotiations in search of a last-minute compromise have included most of the apprehensive Republicans and about half a dozen Democrats.
Talks have centered on two points: which of the seven blocked judicial nominees will be allowed simple majority votes and how to strike a bargain whereby Democrats agree to use judicial filibusters only in "extraordinary circumstances" while Republicans agree not to employ the "nuclear option."
No deal was reported as of early evening Monday.
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(c) 2005, Knight Ridder/Tribune Information Services.
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