McCain joins with Democrats to save filibuster
Senate "Too Close to Call" on Abolishing Filibusters of Judges

WASHINGTON (May 4, 2005) - - At NRL News deadline, the U.S. Senate was fast approaching a razor-close vote on the question of whether Senate Democrats will continue to be allowed to filibuster to block approval of President Bush's judicial nominees.

The Senate will soon decide whether a judicial nominee should be able to achieve confirmation if he or she enjoys the support of a simple majority of the Senate, which is the position supported by pro-life Senator Majority Leader Bill Frist (R-Tn.) and most Republican senators - - or whether a minority will continue to be allowed to erect a 60-vote hurdle, which is the position currently backed by Democratic senators and by a handful of Republicans.

Since 2003, Senate Democrats have blocked at least 10 of the president's nominees to powerful federal appeals courts by filibuster, and they are insisting on preserving the right to filibuster future judicial nominations, especially nominations to the U.S. Supreme Court.

Chief Justice William Rehnquist, who suffers from cancer, is widely expected to announce his retirement at the end of the Court's current term in late June or early July. All of the current justices are over age 65, except for Justice Clarence Thomas.

"The vote on filibuster reform is currently too close to call - - and it will determine whether President Bush is able to fill future vacancies on the U.S. Supreme Court with nominees of his choosing who are supported by a simple majority of the Senate," said NRLC Legislative Director Douglas Johnson.

"We're very close to the day when all 100 senators will need to decide whether a minority should be allowed to filibuster judicial nominees," Eric Ueland, chief of staff to Majority Leader Frist, told NRL News on May 4.

Ralph Neas, president of People for the American Way, one of the well-funded groups supporting filibusters against President Bush's nominees, told the New York Times that his organization had been preparing for years for a fight over Republican nominations to the Supreme Court, but "had not expected it to focus on Senate rules."

"This is one of the most important votes in the history of the Senate," Neas said (New York Times, April 3, 2005).

Neas led the 1987 campaign that prevented the confirmation of Judge Robert Bork, an opponent of Roe v. Wade, to the U.S. Supreme Court. 

Precedent Sought

Frist is pushing to establish a Senate precedent, under which further filibusters of judicial nominees would be declared "dilatory" and out of order. The reform would apply only to filibusters of judicial nominees, not filibusters on bills or amendments to bills.

The proposed reform is referred to by terms such as the "majority rule reform" or "the constitutional option" by those who support it, and as the "nuclear option" by its detractors. The news media, for the most part, have adopted the "nuclear" terminology.

There are currently 55 Republicans in the 100-member Senate. In order to accomplish the reform, Frist needs the votes of at least 49 other Republican senators, since no Democratic senator backs the reform.

This means that the reform cannot be adopted if more than five Republican senators oppose it. As of May 4, three Republican senators had declared their opposition to the reform - - Lincoln Chafee (RI), Olympia Snowe (Me.), and John McCain (Az.) - - and several more were uncommitted or undecided. (See "Who Opposes Filibuster Reform?" on page one.)

If the Senate ties 50-50 on the question, Vice President Dick Cheney would break the tie in favor of the reform. In an April 22 speech, Cheney said, "If the Senate majority decides to move forward, and if the issue is presented to me in my elected office as president of the Senate, and presiding officer, I will support bringing those nominations to the floor for an up-or-down vote."

The Constitution provides, "The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided."

At a press conference on April 28, President Bush said, "I certainly hope my nominees get an up-or-down vote on the floor of the Senate. They deserve an up-or-down vote."

A day earlier, former Vice President Al Gore, the Democratic presidential nominee defeated in the 2000 election, called the reform an effort by Republicans "to satisfy their lust for one-party dominance of all three branches of government."

On April 28, Frist offered Senate Democrats a deal to resolve the issue. Under Frist's proposal, which he called the "Fairness Rule," all of President Bush's nominees to the Supreme Court or to circuit courts of appeals would be guaranteed up-or-down votes, and would be confirmed if they obtain a majority, but as much as 100 hours of debate would be allowed on any given nomination.

Senate Democratic Leader Harry Reid (Nv.) immediately rejected the offer, calling it "a big wet kiss to the far right." Democrats made it clear that they would not consider any deal under which they would not be allowed to filibuster future nominees, including Supreme Court nominees.

On April 21, the Senate Judiciary Committee by party-line votes approved two of the previously filibustered nominees, Priscilla Owen and Janice Rogers Brown.

Owen and Rogers Brown serve on the Texas and California supreme courts, respectively.

Both have been denounced by Democratic senators as "extremists." But the American Bar Association unanimously gave Owen its highest rating - - "well qualified" - - and she was endorsed by a bipartisan group of 15 former presidents of the State Bar of Texas. In 1996 Brown became the first African-American woman ever appointed to the California Supreme Court, and she was retained by voters in 1998 with 76% of the vote.

Once a nominee is approved by the committee, the majority leader has the authority to move to take up a nomination at any time. It is expected that Frist will force the Senate floor showdown on either Owen or Rogers Brown. At some point after a Democratic filibuster develops, Frist would make the point of order that further debate is "dilatory" and out of order. The presiding officer, presumably Cheney, would uphold the point of order. Senate Democrats would appeal this

ruling to the full Senate, and the vote would occur on whether to table (kill) the appeal. If 51 senators - - or 50, plus Cheney - - vote for the tabling motion, the new precedent is established.

Neas' group, People for the American Way, is reportedly spending over $5 million on ads intended to pressure Republican senators to oppose filibuster reform.

On May 2, a conservative organization, Progress for America, announced that it was launching a campaign in favor of filibuster reform, to include radio and TV ads in about 17 states, in addition to Internet ads, reportedly at a total cost of over $3 million.

In an April 11 interview with Internet blogger Hugh Hewitt, Nan Aron, head of the Alliance for Justice, another pro-filibuster group, said, "I would oppose any nominee [to the Supreme Court] who supports the overturning of Roe v. Wade."

When Hewitt asked Aron about four specific possible nominees - - federal courts of appeals judges Michael McConnell, Michael Luttig, and John Roberts, and former Justice Department official Miguel Estrada, Aron said her group would urge a filibuster on any of them.

For updates on this issue, visit the NRLC website frequently, at http://www.nrlc.org