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Filibuster Dilemma
The dilemma facing Senate Democrats.


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Byron York

There’s a heated debate going on among Senate Democrats over whether to broaden the party’s strategy of filibustering the Bush administration’s judicial nominees. So far, Democrats have filibustered only the nomination of D.C. Circuit Court of Appeals candidate Miguel Estrada, although they are blocking several other Bush nominees by the use of senatorial holds and other parliamentary measures (see “The Democrats’ Big Plan,” April 3). The issue has taken on new urgency because Republicans are pushing ahead with efforts to bring the nomination of Priscilla Owen to the Senate floor for a final confirmation vote. Owen, a Texas state supreme-court justice who is being considered for a place on the Fifth Circuit Court of Appeals, was approved by the Senate Judiciary Committee last month on a straight party-line vote.

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So far, Democrats have dragged their feet on debating Owen, but there appears to be a deep division in the party over whether to resort to a filibuster. The debate is focused on the question of how Democrats might frame the issue. Should they filibuster Owen based on objections to her views on questions like abortion? Or should they filibuster Owen based on objections to the way the White House and Senate Republicans have handled the nominations process? Or, lacking any agreement on strategy, should they forgo a filibuster altogether?

The short version of the debate is this: Would it be more effective for Democrats to launch a filibuster about something, or about nothing?

So far, the “nothing” answer seems to be winning, mostly because the “something” approach involves serious political risks. The substance of Democratic opposition to Owen in the Judiciary Committee centered around her decisions involving a Texas law that requires underage girls who want to have an abortion to first notify one parent (the law requires simple notification, not consent). The law gives some girls the option of going to court to request permission to have an abortion without parental notification, and Owen’s sin, as some Democrats saw it, was to read the court-bypass clause more narrowly than some of her colleagues on the Texas high court.

That was enough to cause every Democrat on the Judiciary Committee to vote against her. But the problem for some less-zealous Democrats is that parental notification laws are quite popular nationwide, and it would seem suicidal to launch a filibuster based on a position that so clearly flies in the face of public opinion.

Among Senate Democrats, pro-filibuster forces have identified 15 colleagues who are thought to be opposed to a filibuster based on substance. They are Bob Graham and Bill Nelson of Florida, Evan Bayh of Indiana, Mary Landrieu and John Breaux of Louisiana, Thomas Carper of Delaware, Byron Dorgan and Kent Conrad of North Dakota, Ben Nelson of Nebraska, Max Baucus of Montana, Blanche Lincoln and Mark Pryor of Arkansas, Ernest Hollings of South Carolina, Zell Miller of Georgia, and Robert Byrd of West Virginia.

The opposition of all, or even most, of those senators would be enough to stop a filibuster. Democrats control 49 votes in the Senate. They need 41 votes to sustain a filibuster, which means they can lose no more than eight defectors before the effort falls apart.

In the case of Estrada, just four Democrats — Miller, Breaux, and the two Nelsons — have split with the party’s leadership. But Democrats have remained united only because they have framed the argument in terms of process. They first claimed that Estrada had failed to answer Democrats’ questions about his legal views. Then, when Estrada offered to answer any and all questions, they focused their objections on the White House’s refusal to release memos Estrada wrote while working in the Justice Department, which Democrats say might reveal new information about his legal opinions.

So far, the procedural approach has been enough to keep 45 Democrats together. But would it work against Owen?

She has answered all the Democrats’ questions — in two hearings. There are no secret memos to fight about. But Owen was voted down by the Judiciary Committee, on a straight party-line vote, last year when it was under Democratic control. Now, it appears Democrats will base their argument against her on the contention that President Bush should not have renominated her since she had been voted down in committee. “Owen is a nominee who has already been defeated by the Senate,” Nan Aron, head of the liberal interest group Alliance For Justice, said last month. “It’s inappropriate and unprecedented for her to have been renominated having already been defeated. We believe a filibuster will be just as easy to organize for her as Estrada.”

It is unclear whether there are 45 Democrats who agree. Almost all of those who are said to be wavering on the filibuster question are from states carried by George W. Bush in the 2000 election. Several face reelection in 2004. While most went along with the Estrada filibuster — some reluctantly — they might not be willing to stick their political necks out again.



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