Deadlock on judicial picks spurs ‘nuclear option’ vote on Tuesday

Senate Majority Leader Bill Frist last night scheduled the “nuclear option” vote for Tuesday, an expected announcement that came shortly after a bipartisan group of senators failed yet again to reach a last-minute compromise on judicial nominees.

“We’ve made a tremendous amount of progress in the last few days,” said Sen. Mark Pryor, Arkansas Democrat, who is among those still negotiating. “We don’t have a deal at the moment but we’re still very hopeful.”

But observers on both sides of the aisle doubt a compromise can be reached.

Minority Leader Harry Reid, Nevada Democrat, said earlier this week that Republican leaders won’t yield on their demand that all judicial nominees get final up-or-down votes on the Senate floor.

Sen. Tom Coburn, an Oklahoma Republican who is not among those still negotiating, said Democrats will never promise not to filibuster a Supreme Court nominee.

“There’s nothing going to come out of it,” Mr. Coburn said of the current talks. “But they are the deal makers and let them work it all they want.”

Republicans, meanwhile, picked up an important new vote in Sen. Gordon H. Smith, Oregon Republican. Mr. Smith had long resisted agreeing to vote for the “nuclear option,” but said on the Senate floor yesterday that he is an “unqualified supporter” of the effort.

Mr. Frist said last night he will file a “cloture motion” today, which would end debate on the nomination of Texas Supreme Court Justice Priscilla Owen, who was picked more than four years ago for a spot on the U.S. Court of Appeals for the 5th Circuit.

That cloture vote will require 60 votes for passage and occur Tuesday. If a compromise is not reached before then and Democrats maintain their filibuster by denying cloture, Mr. Frist will then employ the “nuclear option,” which will ban filibusters of judicial nominations.

At some point after Justice Owen’s nomination is dealt with, Mr. Frist will formally take up on the floor the nomination of California Supreme Court Justice Janice Rogers Brown, who is nominated to the U.S. Court of Appeals for the D.C. Circuit.

Democrats, led by members of the Congressional Black Caucus yesterday, have accused Justice Brown, who is black, of being “outside the mainstream.”

“We are particularly disturbed at what she has said on the bench,” said D.C. Delegate Eleanor Holmes Norton, a Democrat. “Twenty years after the Supreme Court ruled that derogatory remarks in the workplace — ethnic slurs, if you will — are not protected by federal law, in dissent, Justice Brown opined that the First Amendment should protect derogatory remarks.”

To rebut such charges, Mr. Frist’s office dug up some old voting statistics from the liberal enclave of San Francisco County, where Sen. John Kerry, Massachusetts Democrat, got 83 percent of the vote in the 2004 presidential race.

Titled “Justice Janice Brown Out of the Mainstream?” the e-mail said, “In 1998, the last time Janice Rogers Brown was on the California ballot, Brown received 79 percent of the vote in San Francisco County.”

Mr. Frist also held a photo opportunity outside the Capitol yesterday with a group of black ministers in support of Justice Brown’s nomination.

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