Senate Judiciary Committee Approves Two of President Bush’s Nominees

SEN. ARLEN SPECTER:

Are we ready to vote? Clerk will call the roll.

KWAME HOLMAN:

By identical 10-8 votes, the Senate Judiciary Committee this morning approved and sent to the full Senate two of the president's most disputed judicial nominees, thereby putting all members of the Senate on full nuclear alert.

SEN. RICHARD DURBIN:

This is an historic meeting of the Senate Judiciary committee, setting the stage for a constitutional confrontation in the United States Senate. These nominations threaten the comity and the courtesy of an institution, which we all serve in, the United States Senate, and which we all revere.

SEN. JOHN CORNYN:

We are, I agree with the senator from Illinois, in the midst of an unfortunate controversy and crisis of the judicial confirmation process, but for more than 200 years in this nation's history before the 108th Congress, a simple majority was all that was required to confirm judicial nominees.

KWAME HOLMAN:

The so-called nuclear option has been hanging over this committee and the full Senate ever since Republican Leader Bill Frist announced he would move to end the Democrats' practice of filibustering selected judicial candidates. He would do so by demanding, and likely achieving, a change in Senate rules to allow judicial approvals by a simple majority vote.

Democratic leader Harry Reid, in turn, has threatened to all but shut down the Senate through procedural delays if Frist follows through. Judiciary Committee Chairman Arlen Specter said he, for one, was working to avoid the nuclear option.

SEN. ARLEN SPECTER:

As I have stated from this chair and this microphone, it is my hope to avoid the confrontation. We have made some progress in moving out Tom Griffith with an indication of no filibuster. There's an indication of no filibuster on Judge Boyle. We are within distance on a cloture as to Myers.

There is extensive negotiations to try to clear three judges on the sixth circuit, so that my effort is being made to confirm judges in normal course, because that is what this committee does.

KWAME HOLMAN:

However, a sense of impending crisis seemed to permeate the committee as neither side was willing to back away from its position on Priscilla Owen, a Texas Supreme Court Justice being considered for the Fifth Circuit Court of Appeals for the third time.

SEN. PATRICK LEAHY:

She sets out to justify some preconceived idea in an activist way, to reach her conclusion. Not an appropriate way to make decisions. It's an example of a judge who's very eager to make law from the bench.

SEN. SAM BROWNBACK:

If she's accused of being a judicial activist, I would just note that the law that she's accused of that on — that parental notification — she's actually following legislative intent, performance of an abortion on a minor, and that normally you should have a parent notified about this. I think this is the type of judge we're looking for.

KWAME HOLMAN:

Nor would they back down on Janice Brown, a California Supreme Court Justice nominated to the District of Columbia Court of Appeals.

SEN. DIANNE FEINSTEIN:

At a 2000 federal society event, Justice Brown stated, "Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is families under siege, war in the streets, unapologetic expropriation of property, the precipitous decline of the rule of law, the rapid rise of corruption, the loss of civility, and the triumph of deceit."

SEN. JEFF SESSIONS:

Government welfare programs have caused the loss of civility in certain areas of our cities, and as an African American, I think she's concerned about it, she cared about it, and she expressed her concern about it. She used language that made that point.

KWAME HOLMAN:

It now appears likely one of the two nominees approved by the committee today will become the trigger for any full-Senate nuclear confrontation.

JIM LEHRER:

And here to take the story from there is Congress watcher Norman Ornstein of the American Enterprise Institute. Norm, welcome again.

NORM ORNSTEIN:

Thank you.

JIM LEHRER:

Let's walk through the process here. These two nominees go to the floor of the Senate. When will they be taken up? Has that been scheduled yet?

NORM ORNSTEIN:

It hasn't been scheduled yet. There is a confirmation calendar, but it's basically the discretion of the Majority Leader Bill Frist. There is every indication that he will begin this process next week. He can bring them up as soon as they've been reported out of the committee, as they now have. Then we will begin a debate. Now —

JIM LEHRER:

The debate will be specifically on each nominee, one at a time?

NORM ORNSTEIN:

One at a time. You can do them en bloc, but it will be one at a time. The speculation has been it will probably be Janice Brown, and Democrats — it's very likely that Sen. Frist will wait until there is some filibuster that's actually taken place. This debate's extended for a few days.

JIM LEHRER:

We use this term filibuster. What actually happens on the floor of the Senate if and when the Democrats begin a filibuster? What happens?

NORM ORNSTEIN:

Well, in the old days, for anybody who saw "Mr. Smith Goes to Washington," in the 1930s it was everything in the Senate would come to a halt, and you'd have people speaking in extended debate for a very long period of time, sometimes around the clock. They don't do that any more. And we're not going to see something where all of a sudden it's clear, the signs go up, "filibuster."

In effect what happens is they talk, and any effort to stop the debate and move to a vote can't be done without filing, at that point, a motion for cloture to stop the debate and bring to it a vote; and that, under the rules, takes 60 senators to do and to stop. So it'll be clear that they are acting in an extended fashion, but it's not going to be through some formal announcement or because the Senate itself completely comes to a halt.

JIM LEHRER:

But once the debate begins, it's likely that that could happen sooner rather than later? We're not talking several days of debate before somebody asks for cloture, right?

NORM ORNSTEIN:

No, and in fact what we have seen in the past on bills and sometimes on nominations is that as soon as they come to the floor, the leader who wants to stop the debate files a cloture motion immediately and you get a vote to get the — gauge the sentiment, whether you're close to the 60 votes.

So, Sen. Frist, the majority leader, controls, in effect, the timing of this. He can file a cloture motion, get the idea that this is being filibustered, and then take the next step almost any time he wants.

JIM LEHRER:

Now, let's go to the next step. Let's say the filibuster is on, the call is for the cloture vote, and then they don't have 60 votes.

NORM ORNSTEIN:

Yes.

JIM LEHRER:

Then Bill Frist will do what, under the nuclear option?

NORM ORNSTEIN:

Under the nuclear option he will stand up and make a point of order that a filibuster against a judicial nomination is unconstitutional. And the chair, which very likely in this case will be Vice President Dick Cheney, the president of the Senate — doesn't have to be — will agree with that point of order, and say the opinion of the chair is unconstitutional.

JIM LEHRER:

Then that goes to a vote, does it not?

NORM ORNSTEIN:

Goes to a vote. There's a little bit of a catch-22 here, however that is that under the Senate rules, constitutional issues themselves are debatable. So the point of order, in effect, would be debatable. And that could be filibustered.

And what will have to happen here is that the chair will have to ignore the parliamentarian, who has already said that in his opinion that's what would have to take place, or they would basically overrule the parliamentarian. Then the way the Senate operates is that points of order or challenges under the rules can come to a vote, and a majority can make that decision. So it will be a majority vote.

JIM LEHRER:

So then assuming that Majority Leader Frist gets his way and through some combination, either it's 50/50 and then the vice president would cast the deciding vote, so you have a new set of rules that would apply to judicial nominations, right?

NORM ORNSTEIN:

Apply to judicial nominations, and Sen. Frist has said repeatedly of late that it's only judicial nominations at this point.

JIM LEHRER:

And all it would require from then on is a majority vote for judicial nominations, right?

NORM ORNSTEIN:

Yes.

JIM LEHRER:

Now, the other part of the nuclear thing is the Democratic threat, which is if that — what we just outlined — happens, they are going to slow things down. Now, how are they going to do that?

NORM ORNSTEIN:

Well, the really operative term for how the Senate works is not the filibuster or rule 22 as it's called; it's unanimous consent. The Senate is a body that basically gives every individual the opportunity to stop things, and in effect all their business is scheduled by unanimous consent.

You have unanimous consent to bring something up on the floor, to take it up in the first place, to get a vote taking place. Just to give you an example, almost every day there may be a dozen nominations for lower level executive positions. And —

JIM LEHRER:

And the Democrats will cut that off? All it takes is one senator to say no, right?

NORM ORNSTEIN:

Thirty seconds, you can deal with them by unanimous consent, no debate, no votes. You can deny that unanimous consent, force each of them into a debate and a full roll call vote. That can be a whole day. So things like that can drag the Senate on. You can block Conference Committees by unanimous consent so you can't actually bring things to fruition.

JIM LEHRER:

Finally and quickly, Norm: Your reading of the situation as we speak here tonight? Are we going to go to the nuclear option, or are there serious efforts afoot to avoid it on both sides?

NORM ORNSTEIN:

There are efforts by some moderates to avoid it, as Senator Specter is one. But Sen. Frist, I think, is determined and basically can't stop now from moving forward. The question is whether he decides to do this next week, right before a recess, so you get in effect a de-linking of the cause and then later on the effect of the slowdown of the Democrats, or waits for a while to try and convince people that he's tried everything. We had a report in the newspaper The Hill this morning that Sen. Rick Santorum, the whip, who has been one of the major —

JIM LEHRER:

On the Republican side.

NORM ORNSTEIN:

— on the Republican side is having second thoughts about doing this now because of a fear that the public is seeing this as breaching the rules and traditions of the Senate. So it could be delayed. It's going to happen, and very possibly will happen this next week.

JIM LEHRER:

Thank you, Norm.

NORM ORNSTEIN:

Thank you, Jim.