- The Washington Times - Tuesday, May 24, 2005

Seven Senate Republicans bolted from their leaders last night and dropped their support for the “nuclear option” in exchange for seven Democrats’ abandoning filibusters against three of President Bush’s judicial nominees.

“This is really good news for every American tonight,” Senate Minority Leader Harry Reid, Nevada Democrat, said moments after the deal was announced last night on live television. “This is a significant victory.”

The seven Republican signers were Sens. Mike DeWine of Ohio, Susan Collins of Maine, Lindsey Graham of South Carolina, Lincoln Chaffee of Rhode Island, John McCain of Arizona, John W. Warner of Virginia and Olympia J. Snowe of Maine.

The seven Democratic signers were Sens. Ben Nelson of Nebraska, Joe Lieberman of Connecticut, Mark Pryor of Arkansas, Robert C. Byrd of West Virginia, Mary L. Landrieu of Louisiana, Ken Salazar of Colorado and Daniel K. Inouye of Hawaii.

The deal didn’t satisfy Majority Leader Bill Frist, who has maintained that the Constitution requires up-or-down votes on all judicial nominees.

“The agreement announced tonight falls short of that principle,” the Tennessee Republican said on the Senate floor. “It falls short. It has some good news, and it has some disappointing news.”

The deal leaves him essentially powerless to ban filibusters against judicial nominees before a fight over a Supreme Court nomination — at least one of which is expected this summer.

The agreement also leaves open the possibility of Democrats’ mounting a filibuster against judicial nominees “under extraordinary circumstances.” There is no similar explicit out in the agreement for Republican signers, beyond a pledge of “mutual trust and confidence.”

The two-page agreement specifically admonished President Bush, saying that the word “advice” in the Senate’s constitutional responsibility should not be taken lightly.

“We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration,” the senators wrote in the memorandum of understanding signed by the 14 negotiators.

Under the deal, Democrats — who hold 44 of the chamber’s 100 seats, plus the support of an independent — agreed to allow final votes on Texas Supreme Court Justice Priscilla Owen, California Supreme Court Justice Janice Rogers Brown and former Alabama Attorney General William Pryor, all nominated to U.S. Circuit Courts of Appeals.

Democrats still refused to agree to allow votes on William G. Myers III, a former lawyer for the Interior Department, and Henry Saad, a Michigan state judge.

The negotiators trumpeted the deal as a victory for the historical role of the Senate as a chamber that operates on consensus and collegiality.

“In a Senate that is increasingly polarized, the bipartisan center held,” said Mr. Lieberman. “The Senate is back in business,” added Mr. Graham.

Nancy Keenan, president of NARAL Pro-Choice America, said her group was “heartened that the crisis has been averted and the right to filibuster preserved for upcoming Supreme Court nominations. We are confident that a Supreme Court nominee who won’t even state a position on Roe v. Wade is the kind of ‘extraordinary circumstance’ this deal envisions.”

Republicans and outside conservative groups were hardly cheering. Former presidential candidate Gary Bauer said the deal was a “sellout,” and Sen. George Allen of Virginia called it “disappointing.”

“The desire of millions of Americans to restore balance to our federal courts has been thwarted behind closed doors by 14 senators,” Mr. Bauer said.

Mr. Allen added that it was “not a good deal for the two nominees who were accorded a nice wake by being thrown overboard at sea.”

The National Coalition to End Judicial Filibusters said such terms as “extraordinary circumstances” and “mutual trust” are meaningless because “Democrats have shown themselves to be without any principle.”

“Today’s deal not only establishes a minority veto even smaller than the previously maintained obstruction, vesting power not in 100 senators, not in 60, not in 51, but in a small number of 14,” the group said.

Mr. Frist has said that the issue isn’t about horse-trading over particular nominees, but rather about the principle of having final votes on all nominees.

“If Owen, Pryor and Brown can receive the courtesy and respect of a fair up-or-down vote, so can Myers and Saad,” Mr. Frist said. “So I will continue to work with everything in my power to see that these judicial nominees also receive that fair up-or-down vote that they deserve.”

With the vote count already tight, the loss of seven Republicans ensures that Mr. Frist wouldn’t get the votes needed to use the “nuclear option” to ban judicial filibusters.

The White House echoed the majority leader.

“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. “We will continue working to push for up-or-down votes for all the nominees.”

Mr. Reid took a moment to thank one senator from across the aisle in particular.

“If there was ever a Southern gentleman, it is the white-haired senator from Virginia, Senator Warner,” he said, noting the leadership role of Mr. Warner in crafting the compromise.

Moments earlier as the deal was about to be announced, several Republicans offered the lectern to Mr. Byrd, who demurred, waiting instead for “his turn.”

“Your turn is whenever you want it to be,” said Mr. McCain, a chief architect of the deal who had to leave the press conference before it ended to make an early screening of a movie about himself.

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