WASHINGTON (BP)–Speaking on the eve of a possible historic showdown, Majority Leader Bill Frist prepared senators Monday for a late-night debate that could wrap up Tuesday with a vote ending judicial filibusters.
The U.S. Senate Monday entered its fourth day of debate on appeals court nominee Priscilla Owen, although — like the previous days — the discussion focused mostly on the role of the filibuster in the confirmation of presidential nominees.
Senators have confirmed more than 200 of President Bush’s judicial nominees, although most of those have been for seats on district courts, which are the lowest branch in the federal judiciary. The Senate controversy has been over nominees to appeals courts, which are one step below the Supreme Court. Democrats have blocked 10 of Bush’s 52 nominees to appeals courts. It is believed that all 10 nominees would be confirmed if they were not filibustered and could receive an up-or-down vote.
Democrats say the 10 nominees are extremists. Republicans say the filibusters on judicial nominees are unconstitutional.
“President Bush now has the lowest appeals court confirmation rate for the first four years of any modern presidency,” Sen. Conrad Burns, R-Mont., said
Speaking on the floor Monday morning, Frist said the Senate would have a “very, very late night” in order to give time to all those wishing to speak. Frist further said that a cloture vote on Owen — that is, a vote to end the filibuster and limit debate — could take place “possibly late [Tuesday] morning,” although that was up for discussion with Minority Leader Harry Reid.
The cloture vote would need 60 votes, which it likely does not have. If the cloture vote fails, then Frist is expected to move to change the rules in order to ban judicial filibusters — a move that has been called the “nuclear” or “constitutional” option. He would need at least 50 votes. A 50-50 split would force Vice President Richard Cheney to break the tie. He has said he would vote with Frist.
Republicans have 55 seats and are expected to lose the support of at least three senators — John McCain, Lincoln Chafee and Olympia Snowe. A dozen senators are still working on a compromise — six from each party — although they have yet to reach any agreement.
“[Q]ualified judicial nominees with the support of the majority of senators deserve a fair up-or-down vote on the Senate floor,” Frist said. “A thorough debate is an important step in the judicial nominations process. [But] debate should culminate with a decision, and a decision should be expressed through that up-or-down vote.”
Specifically, the so-called “nuclear option” would begin with Frist making a point of order that debate on appeals court and Supreme Court nominees should be limited, the Associated Press reported. The Senate’s presiding officer — which could be Cheney — would rule on Frist’s point of order. A simple majority of votes would then uphold the presiding officer’s ruling, the AP said.
The rule change would make it easier to confirm Bush’s most conservative nominees — possibly changing the makeup of the federal courts for years to come. Social conservatives hope those nominees would issue friendlier rulings on abortion, religious freedom and “gay marriage.”
Reid, D.-Nev., pleaded Monday for six Republicans to join with Democrats and defeat a rule change. He said he was “convinced and hopeful and confident” that enough GOP senators would break party ranks.
“I feel that there are Republicans of good will who are willing to be profiles in courage and step to this well … and say, ‘We can’t do that,'” Reid said during debate. “We only need six — six courageous people to stop the Senate from becoming an extension of the House of Representatives.”
But Republican Whip Mitch McConnell, who is in charge of head-counting, said in response to a question on CBS’ “Face the Nation” Sunday that the GOP would have the votes.
Pro-family groups are backing the rule change.
“If these wavering Republican senators, after four decades of judicial activism which has created an environment of hostility to people of faith, cut and run at this critical moment when irrationally senseless activist courts are gaining in influence, they ensure the end of Republican control and will likely cause the loss of the White House and potentially Congress by 2008,” Family Research Council President Tony Perkins said in a statement. “Those people across the nation who mobilized because of ‘values’ and who worked endless hours to elect pro-marriage, pro-family candidates will question the wisdom of their personal sacrifices and contributions.”
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