Compromise clears way for vote on nominee Owen

Wednesday, May 25, 2005

WASHINGTON -- Breaking years of gridlock, the Senate on Tuesday cleared the way for confirmation of Priscilla Owen to the U.S. appeals court amid fresh debate over an ambiguous compromise on President Bush's current and future judicial nominees.

"I appreciate the fact I'm finally going to get a vote," said Owen, swiftly invited to the White House for a presidential show of support. "She is my friend and more importantly she is a great judge," said Bush, a fellow Texan.

The vote was 81-18 to clear Owen for a final vote after Democrats abandoned four years of blocking action, well above the 60 votes needed to cut off debate. That made confirmation a mere formality, with a vote likely today.

At the same time, senators disagreed over the precise meaning and staying power of a compromise forged by centrist senators Monday night that averted a showdown over judicial nominees -- including any to the Supreme Court -- and the Senate's own filibuster rules.

"I do not agree with it because it does not get the job done of ensuring fair, up-or-down votes on all judicial nominees sent to the Senate by the president," Majority Leader Bill Frist said in an e-mail to political supporters.

In remarks on the Senate floor, he said the agreement, "if followed in good faith, will make filibusters of judicial nominees in the future, including Supreme Court nominees, almost impossible." At the same time, he said his ability to seek a limitation of the rights of Democrats to filibuster "remains on the table."

Democratic leader Harry Reid of Nevada disagreed, and said so quickly.

"The agreement that will allow Justice Owen to receive an up-or-down vote also had the effect of taking the nuclear option off the table," he said, referring to Frist's threat to strip Democrats of their ability to filibuster. "This agreement makes clear that the Senate rules have not changed. The filibuster remains available to the Senate minority."

His office sought political gain from the agreement, e-mailing outside groups to suggest they hail the pact as a "victory over the radical right." Some complied, but the Congressional Black Caucus and National Gay and Lesbian Task Force were sharply critical.

Under Senate rules, opponents of legislation or a nomination can prevent final action by erecting a 60-vote hurdle, a parliamentary device known as a filibuster.

Republican Mike DeWine, R-Ohio, one of seven Republicans and seven Democrats to sign the accord, sided with Frist's interpretation, although he and other members of the bipartisan group of negotiators said they expected good faith to prevail.

Those who say otherwise "are the same ones, I think, who said we would never get an agreement," said John McCain, R-Ariz.

That accord was sealed Monday evening around a table in McCain's office.

Among the final barriers to a deal, according to officials in both parties, was finding language flexible enough to satisfy Democrats who wanted to say that their right to filibuster had been preserved while allowing Republicans to say they could always go back and seek a change.

In the end, the compromise said senators would filibuster future nominees only under extraordinary circumstances.

It added, "In light of the spirit and continuing commitments made in this agreement," senators would oppose any change in the filibuster guidelines.

If that was good enough for those around the negotiating table, others divined a lack of clarity.

"The jubilation over the deal ... suggests that this is the first time a Band-Aid has been invented," said Sen. Kit Bond, R-Mo.

The agreement was clear enough on the fate of Owen and two other stalled nominees, Janice Rogers Brown and William Pryor, guaranteeing them a yes-or-no vote on confirmation. It made no such guarantee for two others, Henry Saad and William Myers, although Republicans promised to press for their approval as well.

Apart from the impact on any future nominees, the agreement rearranged the political terrain.

Sen. George Allen, R-Va., a potential presidential contender, criticized the deal as a "major disappointment on principle," since it failed to guarantee a yes-or-no vote for all of Bush's nominees.

Sen. Rick Santorum, R-Pa., also a potential White House contender, sidestepped when asked whether he would have signed the agreement. "Any kind of cooperation is a good place to start," he said.

Frist, also expected to run for the White House, emphasized he had not been a party to the agreement.

While Reid and Rep. Nancy Pelosi, D-Calif., were embracing the agreement, black House Democrats called it "more of a capitulation than a compromise."

"The Congressional Black Caucus strongly opposes the 'deal' that trades judges who oppose our civil rights for a temporary filibuster cease-fire," they said.

Democratic Party Chairman Howard Dean, in an interview with The Associated Press, said, "I would be hesitant to say it's a win for the Democratic Party." That won't become clear, he added, until "we find out if the president consults with the Democrats" on future judicial nominees.

Dean said the deal "was a huge loss for the right wing. ... It was clearly a loss for the president because he was getting accustomed to ramming things through the House and the Senate without any confrontation. It was a win for America because minority rights were supported."

The debate over the agreement overshadowed the rhetoric on the Senate floor about Owen.

"During the last four years, Justice Owen has shown courage, patience and judicial temperament," said Sen. Kay Bailey Hutchison, R-Texas, referring to the protracted confirmation struggle. "This irrefutably well-qualified woman will finally take her rightful place on the federal bench.

Reid countered that Owen had "consistently ruled for big business and corporate interests in cases against workers and consumers," and he said he hoped her experience since being nominated would make her "more sensitive to concerns regarding privacy, civil rights and consumer rights."

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