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The U.S. Senate Wednesday began formal debate on Texas Supreme Court Justice Priscilla Owen’s nomination for a seat on the federal appeals court, moving the chamber one step closer to a historic vote on the future of the judicial filibuster. “We’re going to spend whatever time is necessary to debate all the issues, to really exhaust the discussion on these candidates,” Senate Majority Leader Bill Frist (R-Tenn.) told reporters Tuesday before submitting Owen’s name to the Senate for a confirmation vote. The long-anticipated floor debate is a prologue to Frist’s efforts to invoke the “nuclear option,” a parliamentary maneuver that, if successful, would subsequently preclude all filibusters of federal circuit court and Supreme Court nominees. At the same time, negotiations continued apace by a half-dozen or more moderate senators from both parties to find a solution that will avoid the nuclear option. Senate Democratic Leader Harry Reid of Nevada has said that if the judicial filibuster is eliminated, his party would bring much of the Senate’s business to a halt. Given the Senate’s need for unanimous consent for even the simplest actions, that threat could be easy to carry out. Frist set a schedule Wednesday that calls for each party to alternate one hour of debate on both Owen and, presumably, the validity of the judicial filibuster itself. Formal debate was set to end at 7:45 p.m. EDT, Wednesday. It was not immediately clear whether debate on Owen, first nominated just more than four years ago for a seat on the U.S. Court of Appeals for the 5th Circuit, will continue tomorrow or even until Friday. But it is widely expected that Frist will make an effort to end debate on Owen by the end of the week by laying down a cloture petition. The petition would then require at least one intervening day that the Senate is in session to “ripen.” Under normal Senate rules, a three-fifths majority, or 60 votes, is required to end debate. If that number is not reached, the debate theoretically can continue unabated, with the nominee never coming to the floor for a vote. Senate Republicans, who hold 55 seats, may not win over enough Democrats to invoke cloture and shut off debate, especially on Owen, who was successfully filibustered in the last Congress. In that case, Frist will seek a ruling from the presiding Senate chair that filibustering judicial nominees is out of order. Reid would then appeal the ruling of the chair, which would presumably favor Frist. After that, Republicans would ask for a vote on tabling the ruling from the chair. That crucial vote, they say, is not debatable and would require only a simple majority. The big question, however, is whether Republicans can even get the 50 or 51 votes they need to vote against the Democratic motion and uphold the ruling. (With 50 votes, Vice President Dick Cheney would break the tie in favor of the GOP.) At least three Republicans-Sens. John McCain (Ariz.), Olympia Snowe (Maine) and Lincoln Chafee (R.I.)-have already said they would not vote to end the filibuster. Several other Republicans are uncommitted. “You never have the votes until you have the vote,” Sen. Trent Lott (R-Miss.), Frist’s predecessor as majority leader, told reporters Tuesday. “Senators are cagey,” Lott said. “They hide in the tall grass.” He said that when he was majority leader, he went forward with votes “many times” without knowing the outcome. On Tuesday, Owen and Janice Rogers Brown, a California Supreme Court justice nominated for a seat on the D.C. Circuit, met with President George W. Bush and held a photo op in Frist’s Senate office. Until yesterday, it was unclear which of the two women would be debated first. In the view of several Democratic strategists, Owen is a far easier choice for Republicans to defend. Brown, on the other hand, has a collection of sound bites that are far more inflammatory, calling the New Deal a “socialist revolution” and saying that Social Security should be equated with “cannibalism.” In the escalating public debate over the nominees-a debate fueled by television and radio commercials-one Democratic Senate staffer earlier this month noted, “Brown gives us more ammunition. She’s got juicier quotes.” Several varieties of deals to avoid the nuclear option are being brokered by a collection of moderate senators led by Ben Nelson (D-Neb.) and Mark Pryor (D-Ark.). The gist of these deals would involve six Republicans and six Democrats making an agreement among themselves and therefore denying either side the advantage in the filibuster confrontation. The Republicans would agree not to support Frist’s nuclear option, which means he would not have the votes to eliminate the judicial filibuster. The Democrats, on the other hand, would agree to filibuster only the most extreme conservative judges, thereby guaranteeing that their party would not be able to muster enough votes to sustain a filibuster. The problem has been in determining which judges would still merit a filibuster. Under one proposal, Democrats would filibuster only two among four of the most controversial judges voted out of the Senate Judiciary Committee this year-Owen; Brown; William Myers III, nominated for a seat on the 9th Circuit; and William Pryor Jr., nominated to the 11th Circuit. Republicans want to lower that number to one. Whatever the solution, noted Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) in his floor speech Wednesday, “The fact is that all, or almost all, senators want to avoid the crisis.” Many Democrats, Specter said, “have told me that they do not personally believe it is a good idea to filibuster President Bush’s judicial nominees. They believe that this unprecedented use of the filibuster does damage to this institution and to the prerogatives of the president.” Likewise, Specter continued, “there are many Republicans in this body who question the wisdom of the . . . nuclear option. They recognize that such a step would be a serious blow to the rights of the minority that have always distinguished this body from the House of Representatives.” Elimination of the judicial filibuster, Specter noted, “would lead to extreme judges at each end of the political spectrum, as control of the Senate inevitably shifts from one party to the other.” T.R. Goldman can be contacted at [email protected].

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