Senate Begins Debate over Judicial Nominees

SENATE CLERK:

Nomination, the Judiciary: Priscilla Richmond Owen of Texas to be United States Circuit Judge.

KWAME HOLMAN:

This morning, the nomination of Texas Supreme Court Justice Priscilla Owen to a federal circuit court of appeals, was positioned to become the test case for Senate Republicans intent on ensuring up-or-down votes on the president's judicial nominees.

SEN. BILL FRIST:

Vote for the nominee. Vote against the nominee. Confirm the nominee. Reject the nominee, but, in the end, vote.

KWAME HOLMAN:

That vote could come within days, and majority leader Bill Frist has vowed to strip Democrats of their right to filibuster judicial choices if they try to block Owen.

That's something Democrats have twice succeeded in doing. The change in Senate rules, dubbed the "nuclear option," would permit judicial confirmations by a simple majority vote.

This morning, Democratic Leader Harry Reid once again suggested the Senate first move to confirm four less controversial nominees.

SEN. HARRY REID:

So I would ask the distinguished majority leader, if he would agree that we could move to these with reasonable time agreements prior to moving to Priscilla Owen.

KWAME HOLMAN:

But Frist rejected the offer.

SEN. BILL FRIST:

We have given careful consideration of which would be the appropriate person to begin with and it is Priscilla Owen, so we will proceed with Priscilla Owen.

KWAME HOLMAN:

Reid then suggested that Frist call a senators-only meeting in the Capitol's smaller, intimate old Senate chamber away from cameras.

SEN. HARRY REID:

I think it would be good for the body. I think it would be good for the American public to see that we are able to sit down in the same room and work things out.

KWAME HOLMAN:

While Frist did not rule out further discussions, he remained focused on the process he started today.

SEN. BILL FRIST:

That's why we're on the floor of the United States Senate, with the light of day, with the American people watching at this point, to take it to the body of the United States Senate, and ask that fundamental question: Is Priscilla Owen out of the mainstream?

KWAME HOLMAN:

If Frist is able to remove the Democrats' right to filibuster, Democrats have vowed to slow Senate business to a crawl with an array of procedural maneuvers. Reid used one this morning, demonstrating that a single member can prevent Senate committees from meeting while the Senate is in session.

SEN. HARRY REID:

In that we've started this process, my friend, the distinguished majority leader, should be advised that we will not agree to committees meeting during the time that we are doing the debate on Priscilla Owen.

KWAME HOLMAN:

Judiciary Committee Chairman Arlen Specter said such developments worry him, and while he supports an up-or-down vote on Owen's nomination, he hasn't said whether he would support changing the rules to guarantee one.

SEN. ARLEN SPECTER:

I have not rendered a decision because I happen to believe I can be most helpful in brokering a compromise by remaining silent. When neither side is confident of success, and I think that is the case today, the chances for compromise are far greater.

KWAME HOLMAN:

Meanwhile, the debate on the nomination of Priscilla Owen proceeded steadily with Democrats and Republicans taking turns an hour at a time.

When Republican Kay Bailey Hutchison was finished endorsing the nomination of her friend and fellow Texan Owen, the senator was brought to tears.

SEN. KAY BAILEY HUTCHISON:

And she will be a member of the Court of Appeals of the Fifth Circuit of the United States Government. I think she deserves confirmation.

KWAME HOLMAN:

But New York's Chuck Schumer articulated why he and his fellow Democrats remain firmly opposed to Justice Owen.

SEN. CHUCK SCHUMER:

There's no question she's immoderate, she's a judicial activist. I continue to believe that Justice Owen will fail my litmus test, my only litmus test, in terms of nominating judges.

And that is, will they interpret law and not make law? Will they not impose their own views and have enough respect for the Constitution and the laws of this land that they impose their own?

KWAME HOLMAN:

And the debate inevitably turned back to the larger issue of the possible change in Senate rules.

SEN. PATRICK LEAHY:

Violate the Senate rules; overturn the Senate rules —

KWAME HOLMAN:

Several Democrats repeated the charge that exercising the nuclear option will do irreparable harm to the institution.

SEN. DICK DURBIN:

Those founding fathers who wrote that Constitution made the Senate a special institution, an institution where, in fact, minority rights and the minority's opportunity to speak would always be protected.

To take away those minority rights by Vice President Cheney making a casual ruling from the chair, to sweep away 214 years of precedent and rules so that someone can score a quick victory in terms of even one, two, or ten judges is entirely inappropriate.

KWAME HOLMAN:

Texas Republican John Cornyn called talk of hurting the institution overblown, arguing that a majority is being unfairly held up by a minority.

SEN. JOHN CORNYN:

This is the irony of where we find ourselves, though a bipartisan majority stand ready to confirm her nomination, a partisan minority obstruct the process and refuse to allow a vote.

KWAME HOLMAN:

Senators plan to debate Judge Owen's nomination through the balance of the week, with a crucial test vote next Tuesday or Wednesday.

Meanwhile, groups of senators on both sides hope to fashion a compromise that will avert a change in Senate rules and still give votes to some of the nominees.

JIM LEHRER:

Gwen Ifill is here now to go through where, and how, it might go from here. All right, Gwen. Let's assume there is no compromise to begin with. Take us through the collision scenario from this point on, from today on.

GWEN IFILL:

Well, what we saw today, of course, was rending of hair, and hair shirts and people getting very emotional on the floor, crying on the floor, quoting Euripides, all of that.

But that was just setting the stage. This is first day of several days of expected debate, as Kwame said, probably next Tuesday or next Wednesday will be the ultimate moment.

What happens after this debate, is after a couple days with everything else also going on offstage, Sen. Frist then comes to the floor, probably next Tuesday or Wednesday, and says, "Okay, we've had enough debate. Let's end debate." In order to end debate, he needs 60 votes.

JIM LEHRER:

And that's what it is now. That's the rule now?

GWEN IFILL:

That's the rule now. But if he doesn't get the 60 votes, as he's not expected to in asking for the end to debate, he then can do two things: he can either let debate continue and call for several other cloture votes.

Or, and this is what everyone is talking about– invoke the nuclear option, which is turn to the president of the Senate, Vice President Cheney, and is sympathetic to his cause, and say, "You know what, let's change the rules so that we can confirm these judges with only a majority instead of a super majority," which mean 51 votes.

If that happens, then the Democrats are expected to challenge that 51-vote rule, and if they try to challenge it, Sen. Frist is expected to respond by saying, "I'm going to table this whole debate," essentially kill the Democrats' challenge; that's the nuclear option.

JIM LEHRER:

And most likely that would happen, if it happens, on Tuesday or Wednesday of next week.

GWEN IFILL:

That's what the people are saying now.

JIM LEHRER:

Okay. Take it one more step. If that, in fact, does happen on Tuesday or Wednesday, are the Democrats prepared to immediately invoke their part of the nuclear option, which is to slow things down, or are there more nominees likely to come, or is there any way to even know?

GWEN IFILL:

In fact, if you are listening to what Sen. Reid said just now in Kwame's piece, they're already starting to slow things down. They're not allowing other committee meetings to happen.

But what happens then next week is they decide, they say, which kinds of issues they will allow to come to the floor. For instance, there are a couple of things bottled up, like the Bolton nomination that the White House and Republicans would like to see move; the Democrats could see to it that those things didn't move so quickly.

JIM LEHRER:

Okay. Now, meanwhile, as you say, while all of that's going on, everybody's seeing what is happening — behind the doors, other things are happening. Where's the compromise talk at this point?

GWEN IFILL:

There's where all the drama always happens at the Senate. There are all these wonderful, high-profile speeches on the floor, but really what's happening in a rolling series of meetings throughout the Capitol, they seem to keep moving, trying to stay ahead of the people who are watching them, from Sen. Warner's office this morning, to Sen. Pryor's office this afternoon.

JIM LEHRER:

That's a Republican and a Democrat.

GWEN IFILL:

That's a Republican and a Democrat. And what you have is a group of about less than a dozen at this point, senators, who don't want to see it come to this, and so they're coming up with all kinds of plans. The basic outlines —

JIM LEHRER:

And they are, just so we understand, both Democrats and Republicans have different reasons in a way, do they not?

GWEN IFILL:

That's right.

JIM LEHRER:

They're not wanting it – but, okay, go ahead.

GWEN IFILL:

The Republicans don't want it because this sets a bad precedent, and on this the Democrats agree, they think it will set a bad precedent. But what the Democrats and the Republicans are trying to agree on — right now they're nit-picking over language — is a deal which would allow the Republicans not to invoke the nuclear option.

Have them agree not to do this, in exchange for the Democrats agreeing not to use judicial filibusters except in extraordinary circumstances, and, of course, words like "extraordinary circumstances" are where the problems begin. No one quite trusts the other on this.

JIM LEHRER:

Now, you say about a dozen senators are involved in this, but the leaders are not? Reid and Frist are not involved in this?

GWEN IFILL:

No, it's actually kind of curious at this point. Neither of the leaders are overtly involved, even though they were involved in the meeting, the first big meeting yesterday; today they have not been.

Some of the staff members have obviously been listening in, and in fact there's some debate about whether the leaders really want a compromise to happen, which is a whole other political discussion.

JIM LEHRER:

Sure, sure.

GWEN IFILL:

But the folks who are in the room are in the leadership. Sen. McCain, he's a committee chairman, is leading the move on the Republican side, and he's joined by Senators Snow and Collins from Maine, Sen. Graham from South Carolina, Sen. Pryor from Arkansas.

And they're all trying — senator Pryor from Arkansas is a Democrat– but the Republicans are trying to get these together. On the Democrat side — oh, and I didn't mention Sen. Warner, which is significant because he's a Frist ally. And then on the other —

JIM LEHRER:

And a very powerful senior man — he's chairman of the Senate Armed Services Committee.

GWEN IFILL:

And Sen. Specter, who's the chairman of the Judiciary Committee, is part of this group as well. So these are not insignificant senators trying to find another, a third way out.

And on the Democratic side you have Sen. Salazar from Colorado, Sen. Nelson from Nebraska, and some others who are trying to figure – Sen. Lieberman — trying to figure another way out of this as well, because they seem to recognize that there's a certain power in arguing that every nominee deserves an up or down vote.

The question now is: Do they get the up or down vote? Does that mean that they get confirmed? Not necessarily.

JIM LEHRER:

But if these moderates, or whatever you want to call them, these 12 or so, are able to work out a compromise, they could do it without the leadership and pull it off just because of the number of votes?

GWEN IFILL:

Exactly.

JIM LEHRER:

How do they do that?

GWEN IFILL:

They need six votes in order for it to work, and if they can get six Republicans, which is a real nut right now, to sign on to this, they will be able to stop this.

They came out of their last meeting just before we went on the air, and they're all saying things like, "Well, we're kind of close; we don't know." Sen. Warner said, "Tomorrow is another day." Sen. Snow said, "We're just trying to agree to language."

They're basically leaving the door open, but I talked to people in the leadership offices today who didn't sound optimistic about the ability of getting some sort of compromise in time.

JIM LEHRER:

In time. I see. Okay, I am going to do you a favor and not ask you to predict how this thing is going to go —

GWEN IFILL:

Thank you so much.

JIM LEHRER:

— because I know you don't have an answer.

GWEN IFILL:

Not a clue.

JIM LEHRER:

And neither does anybody else. Thank you, Gwen.

GWEN IFILL:

Thank you.