Dan Balz
May 25, 2005

Dan Balz is national political correspondent at The Washington Post. He joined the paper in 1978 and has been involved in the paper’s political coverage for the past 27 years. (Read Dan Balz's bio)

Q: What were the main disagreements for the senators negotiating behind closed doors? How did they finally reach the deal?

There were three issues involved: (1) Which of Bush's judicial nominees would be cleared for up-or-down votes and which would not; (2) the "advice and consent" process and what senators hoped to see from the president in the future; and (3) the question of under what circumstances Democrats might use the filibuster, and if they did, whether Republicans would have the right to support the so-called "nuclear option." The first two were dealt with fairly easily. On the first question, the Gang of 14 decided that three Bush nominees -- Priscilla Owen, Janice Rogers Brown and William Pryor -- would not be defeated by filibuster and that two others -- William G. Myers III and Henry Saad -- would not be protected against a filibuster. The agreement was silent on other Bush nominees who have been blocked.

The "advice and consent" issue was a particular project of the two most senior members of the group, Democrat Robert C. Byrd of West Virginia and Republican John Warner of Virginia. Both pushed to include a request to the White House to consult more directly on future judicial nominees.

The third issue -- filibuster v. "nuclear option" -- almost scotched the deal. Democrats wanted the Republicans to agree to rule out use of the nuclear option for the rest of this Congress, while retaining for themselves the right to use a filibuster "under extraordinary circumstances." Republicans said that gave too much to the Democrats and wanted to retain the right to support the "nuclear option" if they concluded that Democrats in the group were breaking the agreement by supporting a filibuster under questionable circumstances. They went round and round on language all week on that particular issue and only on Monday did they find something that both sides could agree to.

Q: The compromise to avert the showdown included the term "extraordinary circumstances". What does that mean, and how might it be applied during a Supreme Court confirmation process?

That is the most difficult question of all the many questions about the agreement and the one that will determine whether this was a real or illusory pact. Under the terms of the agreement, each individual senator has the right to decide whether "extraordinary circumstances" exist that would justify a filibuster. It will be an individual decision, not a group decision, which means there will be many different standards applied. Republicans are arguing that, if these Democratic senators were willing to see Owen, Brown and Pryor approved, they won't be able to justify a filibuster against a future nominee simply on the basis of that nominee's conservative positions. Perhaps. Perhaps not. At this point no one can say with any certainty what might trigger one of the group to support a filibuster. But with a Supreme Court vacancy possible in the near future, this will come to a head quickly.

Q: Has a stalemate like the one that was narrowly avoided this week happened recently in Senate history? Does the current mood in the Senate mark a historic low?

This was a highly unusual situation, but one that the Senate has been building toward for more than a decade. What was unusual about this was the willingness of Senate Majority Leader Bill Frist of Tennessee to try to change Senate rules, or precedent, to ban filibusters on judicial nominees. What helped make this unusual was the degree to which outside interest groups on the right and left were almost dictating to the leadership the terms of the battle. Those on the right were demanding nothing short of up-or-down votes on all of Bush's nominees. Those on the left were demanding nothing less than preservation of the filibuster and a Republican agreement never to invoke the "nuclear option." Into that vacuum stepped John McCain and the other members of the Gang of 14, who were trying to prevent the chaos they believed would result from the "nuclear option" but who also wanted the Senate to step back from the routine use of filibusters against judicial nominees.

It's always risky to say the current mood is a historic low. There have been other times when the Senate has been badly polarized. The Bork nomination fight back in the late 1980s was certainly one where relations between the two parties was at a low point. The battle over John Tower's nomination as Secretary of Defense (he was not confirmed) was an angry and poisonous moment. The Clinton impeachment trial was a difficult period for the Senate. So this is one of a number of moments where the mood has been sour, and it's possible we'll see a repeat of it when there is a Supreme Court nomination battle, since that's what all this was really about.

Q: What role did the freshmen senators play in the filibuster fight?

Several freshman senators were in the thick of the negotiations to head off the "nuclear option." Ben Nelson of Nebraska, who is in the final two years of his first term, was the point person for the Democrats, and Mark Pryor of Arkansas (elected in 2002) and Ken Salazar (elected just last fall) were two of the principal players on that side. On the Republican side, Lindsey Graham of South Carolina (elected in 2002) got involved in the middle of the week and was active to the end. They were certainly important to the outcome, but so were other more veteran senators. John McCain, the point person for the Republicans, brought unique national stature to the deliberations. Republican Mike DeWine of Ohio played a crucial role in the trade-off between the filibuster and the "nuclear option" and Democrat Joe Lieberman resisted giving the Republicans too much leeway on that front. Republican Olympia Snowe strongly opposed the "nuclear option" and pushed hard for the Gang of 14 to find a way to compromise. The seniority of Byrd and Warner gave the group's negotiations added significance. But it was striking to see freshman senators so actively involved in such a high-stakes negotiation.

Q: Did the White House play any role in negotiating the compromise? What is their reaction to the agreement?

The White House played no direct role in all of this, as best as we can tell. The president carefully avoided any involvement so as not to appear to be meddling in another branch of government. Behind the scenes, Vice President Cheney, who is an officer of the Senate, was pushing senators to back the "nuclear option." Senators in the Gang of 14 were keeping their respective leadership informed about the negotiations and the White House was certainly kept abreast of those developments.