Politics & Policy

The Answer Is in The Works

The real negotiations haven't taken place yet.

Today begins the fifth year of waiting for confirmation for some of President Bush’s nominees to the federal courts of appeals. With the Senate reconvening on Capitol Hill, and Majority Leader Bill Frist preparing to use the “nuclear option”–or the “constitutional option” or “Byrd option,” as it is also known–to end the standoff over Democratic filibusters, the outlines of a possible compromise solution are beginning to take shape.

It’s not the quick-and-dirty fix, recently floated in the press, in which both sides would exchange a few nominees and call it a day, with no real change in the way the Senate works. Republicans genuinely, and deeply, believe that Democrats have abused the system by their unprecedented filibusters of an entire slate of judicial nominees. To use the phrase heard most often in discussions with them, Republicans want to “fix the problem going forward,” that is, to break through not only today’s stalemate but prevent future ones.

What would a deal look like? There have already been two proposed “compromises” in the standoff, one from Senate Minority Leader Harry Reid and the other from Frist. But neither was a final offer; it would be more accurate to see them as starting points, intended to feel out the opposition’s readiness to deal. And each offers part of a possible solution.

For the GOP’s part, Senate Majority Leader Bill Frist has proposed a solution that would end the practice of bottling up appellate-court nominees in committee (the key Democratic complaint against majority Republicans during the Clinton years), as well as guarantee 100 hours of debate on each nomination. Reid rejected that offer, calling it “a big wet kiss to the far right.”

Reid had originally offered to pass three of four Bush nominees to the Sixth Circuit Court of Appeals who are not being filibustered but are nonetheless being blocked by Michigan Democratic Sens. Carl Levin and Debbie Stabenow. They are what is known as “noncontroversial” nominees, meaning Democrats have not raised any substantive objections to them but are blocking them en masse in large part because Levin remains angry that his cousin’s wife, Helene White, who was nominated to the bench by Bill Clinton, was not confirmed by the Republican Senate. In addition, Reid offered to allow an up-or-down vote on one of President Bush’s “controversial” nominees like Priscilla Owen or Janice Rogers Brown. Frist rejected that offer, saying that all nominees deserve an up-or-down vote.

Based on conversations with three well-connected Republicans–call them Republicans A, B, and C–it appears that the solution might lie in a combination of the two offers. Frist’s 100-hour proposal is a substantial deal. While it would end filibusters, it would mean that Democrats could still effectively block some nominees. “Senate floor time is very precious,” says Republican A. “If you have a lot of guaranteed debate time, then effectively leadership will not be able to bring forward every nominee if the minority insists on going through every procedure that is there. If [Democrats] said, ‘We want 100 hours on all of them,’” then realistically all of them would not come up.”

Privately, some Republicans indicate that they are willing to negotiate further on this point. For example, if Democrats wanted more time, say 120 hours, for each nomination, then “I’m sure we would have that conversation,” says Republican A.

More importantly, some in the GOP appear willing to abandon the position that all Bush nominees must have an up-or-down vote–if that would ensure that future nominees would not face filibusters. “If you had to sacrifice a couple of nominees,” says Republican B, “so that you could save the courts and preserve the principle from now on, it’s not like these are the only conservative nominees in the world.”

“Who cares about these individual nominees?” adds Republican A. “You care about the process going forward. Frist isn’t in this to protect Janice Rogers Brown or Priscilla Owen. He wants to fix this and have a system that works for both sides going forward.”

It is important to remember that Democrats already have killed three nominations. Miguel Estrada, Carolyn Kuhl, and Charles Pickering, all filibustered, all chose not to be renominated for their positions. Estrada and Kuhl apparently had enough of the process. Pickering was given a brief recess appointment to the bench but chose to retire rather than face a new confirmation fight. Any count of Republican concessions to Democrats would begin with the number three.

Some Republicans believe there is the possibility of a deal by negotiating the time of debate and the fate of current nominees. Frist has to walk away with a deal in which no one would be allowed to filibuster judicial nominees. And Reid has to have a deal in which Democrats can walk away with some scalps and still retain the ability to block some nominees.

It is entirely possible that neither side will budge and Frist will end the filibusters with the nuclear/constitutional/Byrd option. But the process is not at that point yet. In fact, it is safe to say that, despite the enormous amount of attention paid to the subject recently, many Republican and Democratic senators have not yet thought hard about what they would actually do to end the stalemate. They know some sort of resolution is coming, but it’s not quite here yet, and they haven’t gotten to the point where they clear away all other concerns and concentrate on the filibusters.

But that time is coming soon. When it becomes clear that Frist is ready to act on the filibusters, then Republicans and Democrats will start thinking hard. Seventy-two hours before such a deadline–and 48 hours before, and then 24 hours before–lawmakers will begin the kind of intense thinking about the subject that many have not done up to now. “The prospect of a deadline will sharpen the mind,” says Republican C. And even though Frist has no obligation to announce the day and hour he might take action, that will likely become clear enough. “The sound of the waterfall will be so great,” says Republican B, “that everybody will know when we’re approaching the edge.”

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