- The Washington Times - Wednesday, May 25, 2005

Senate Democrats yesterday abandoned their filibuster against Texas Supreme Court Justice Priscilla Owen, who was nominated more than four years ago to the 5th U.S. Circuit Court of Appeals.

The floor action to end debate and allow an up-or-down confirmation vote passed overwhelmingly, on an 81-18 margin aided by 23 Democrats who reversed themselves yesterday after having prevented the Owen nomination from being voted on for years.

It reversed four previous votes and was the first test of the dramatic last-minute deal struck Monday night to avert the ?nuclear option? with which Republicans had planned to clear the filibuster.

The Democratic reversal proved that ?this is about the politics of character assassination, the politics of personal destruction,? said Sen. John Cornyn, Texas Republican and ardent supporter of Justice Owen. ?In Washington, perhaps people can be forgiven for believing that happens far too much.?

But even as Justice Owen’s nomination proceeded toward confirmation as early as today, both sides remained divided over the precise meaning of the deal that cleared the way for her and two other nominees but left available to Democrats the judicial filibuster, which Republicans contend is unconstitutional.

The primary point of contention is the definition of “extraordinary circumstances” under which the deal permits Democrats to mount future judicial filibusters without facing Republican retribution such as the nuclear option.

“The terms ‘extraordinary circumstances’ do not lend themselves to any easy interpretation,” Senate Judiciary Committee Chairman Arlen Specter said yesterday. “But when the Democratic leader observes that means ‘occasional’ and ‘very infrequent,’ that is very reassuring.”

Within minutes of the deal’s announcement Monday night, NARAL Pro-Choice America announced that “extraordinary circumstances” should include any nominees who don’t state their positions on Roe v. Wade, the court case that made abortion a constitutional right. Other liberals have defined “extraordinary circumstances” as any vacancy on the Supreme Court.

Several conservative groups, including the Committee for Justice, came to quite a different conclusion because the deal includes unfettered confirmation votes for Justice Owen and two other conservative jurists — California Supreme Court Justice Janice Rogers Brown and former Alabama Attorney General William H. Pryor.

“The fact that Senate Democrats are willing to allow cloture on Owen, Brown and Pryor indicates that conservative judicial philosophy cannot be considered the basis for a filibuster, or an ‘extraordinary circumstance,’ ” said Sean Rushton, executive director of Committee for Justice.

Anyone looking yesterday for clarification from the signers and drafters of the Monday compromise didn’t find it.

Asked what he meant by the phrase, Sen. John McCain, Arizona Republican, replied: “It’s like child pornography, my friend. You know it when you see it.”

Sen. Ken Salazar, Colorado Democrat, responded by saying, “I want judges to be fair, impartial and will uphold the law.”

Asked whether Mr. Bush’s nominees fail to meet those credentials, Mr. Salazar said: “Some of them do, but I’m not going to reach a decision without all of the facts.”

Sen. Mike DeWine, Ohio Republican, said the group of 14 senators purposely “left it undefined.”

Republicans defending the compromise pointed to Mr. DeWine’s statement shortly after the deal was reached.

“If an individual senator believes in the future that a filibuster is taking place under something that’s not extraordinary circumstances, we of course reserve the right to do what we could have done tomorrow which is to cast a ‘yes’ vote for the constitutional option,” he said Monday night.

A Republican Senate leadership aide said that if Democratic signatories engage in a frivolous filibuster, then the Republican signers will happily support the “nuclear option,” which would set a new precedent to ban judicial filibusters.

“Hell hath no fury like a Senate moderate scorned,” the aide said.

However the deal will be carried out, it opened the way for yesterday’s vote in favor of ending the debate on Justice Owen so that she could be granted a final up-or-down vote.

Yesterday’s noon vote did not avoid all contention.

As the Senate clerk officially read the nomination under consideration, Sen. Carl Levin, Michigan Democrat who has been a key opponent of four of Mr. Bush’s judicial nominees, arose and asked to make a “parliamentary inquiry.”

Sen. John E. Sununu, New Hampshire Republican who was seated in the chair as the presiding officer, gave Mr. Levin the floor.

Wanting to establish that judicial filibusters are legitimate because 60 votes are required to invoke cloture or end debate, Mr. Levin asked how many votes are required for cloture “under the rules and precedence of the Senate.”

Mr. Sununu, a first-term senator, ignored Mr. Levin’s inquiry.

Ten seconds passed and still Mr. Sununu refused to answer Mr. Levin’s question.

“Is there an answer to my parliamentary inquiry, Mr. President?” Mr. Levin asked again to no answer. After about a half-minute of ignoring Mr. Levin’s request, the clerk began calling the roll for the vote on ending debate on Justice Owen’s nomination. The final confirmation vote on her nomination is expected at noon today.

But President Bush wasn’t waiting to celebrate.

“Over four years ago, I put Judge Owen’s name up to the Senate for confirmation,” he said in an Oval Office meeting with Justice Owen, Majority Leader Bill Frist and others. “Thanks to the good work of the leader — whose work cleared the way — Judge Owen is finally going to get an up-or-down vote on the Senate floor. She is my friend, and more importantly, she’s a great judge.”

Justice Owen, who has been discussed as a possible Supreme Court nominee, thanked Mr. Bush and promised to remember “that you expect judges to follow the law.”

Copyright © 2018 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide