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Less than a day after 14 moderate senators crafted a two-page bipartisan deal that allowed the Senate to avoid a historic vote on eliminating the judicial filibuster, the chamber voted decisively to cut off debate and hold an up-or-down vote on Texas Supreme Court Judge Priscilla Owen for a seat on the U.S. Court of Appeals for the 5th Circuit. The floor vote is expected Wednesday. “This has been a bad patch for the Senate,” said former Senate Majority Leader Trent Lott (R-Miss.) minutes after the Senate voted 81-18 to end debate on Owen’s nomination. “We’ve looked bad and acted bad. Now we need to go on with the business the people want us to work on.” For several weeks, the Senate has been anticipating the use of what came to be known as the nuclear option, a parliamentary maneuver engineered by Senate Majority Leader Bill Frist (R-Tenn.) that would force an end to the judicial filibuster and allow Republicans to confirm judicial nominees with a simple majority vote. Democrats had successfully used the filibuster against 10 federal appeals court nominees in the last congressional session because Republicans were never able to muster the 60 votes required to cut off debate. Democratic Leader Harry Reid of Nevada had sworn to bring much of the Senate’s business to a halt if Frist invoked the rule change, which he could do with just 50 votes�a tie that would presumably be broken by Vice President Dick Cheney in his role as Senate president. But Monday night a rump group of seven Republicans, led by Arizona Sen. John McCain, and seven Democrats, headed by Arkansas freshman Sen. Mark Pryor and Nebraska Sen. Ben Nelson, announced they had reached an agreement that would preclude filibusters of judicial or Supreme Court nominees except in “extraordinary circumstances.” In addition, the agreement mandated that Democrats would not filibuster Owen, who was first nominated in May 2001, or two other controversial judges, as well: California Supreme Court Justice Janice Rogers Brown, nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit, and former Alabama Attorney General William Pryor Jr., nominated for a seat on the 11th Circuit. The number of Democrats and Republicans who signed the agreement is significant: At least five Democrats, voting along with all 55 GOP Senators, were needed to ensure that debate on any of the controversial nominees could be cut off; conversely, if at least six Republicans agreed not to vote for the nuclear option, then Frist would not have had the 50 votes he needed to implement the rule change. The 14 breakaway senators made no commitment one way or the other about whether two other nominees could be filibustered: former Interior Department Solicitor General William Myers, nominated for a seat on the 9th Circuit, and Henry Saad, nominated for a seat on the 6th Circuit. “It’s not a contract,” said Nelson after the vote to cut off floor debate on Owen had been taken. “It’s a mutual agreement. And I’m going to vote for cloture every time I can.” Nelson echoed comments made by others in the group of 14, that the agreement could provide at least some impetus for the Senate to work on a more bipartisan basis. “This spirit of compromise and mutual trust is really something that might carry over into other areas,” he said, adding quickly that the group was an ad hoc collection of senators, including the chamber’s dean, Robert Byrd (D-W.Va.), who has been in the Senate some 45 years, that had no plans to continue meeting regularly. “We don’t see this as a new group,” he said. “And I suspect the two leaders wouldn’t want that, either.” It remained unclear Tuesday afternoon when Frist would decide to go forward with a floor debate and an up-or-down vote on the nominations of Brown and Pryor. Also unclear was the future of two other controversial nominees who had yet to be voted out of the Senate Judiciary Committee this session: Brett Kavanaugh, a former associate White House counsel who helped pick some of President George W. Bush’s judicial nominees, and Terrence Boyle, a longtime federal district judge in North Carolina. Last night’s agreement was met with unabashed relief by most senators; many had believed their chamber would have slowed down to the point where little business would get done. But it was still an open question which party would suffer more damage politically. “This was an anomaly, a huge issue about the integrity of the institution at stake,” McCain said after the filibuster vote. “The American people were very unhappy about the way we were doing business.” As members and staffers continued to debate the merits of the compromise and, more importantly, which side came out on top, Democrats were quick to point out that they still retain the right to filibuster, although the criteria of “extraordinary circumstances”�a term undefined in the agreement�limits that ability. But Republicans noted that they were now guaranteed an up-or-down vote on the three nominees the Democrats widely view as the most problematic. “I don’t know if they’ll all be confirmed,” said Lott. “But so what? ‘Extraordinary circumstances’ is very clearly definable, although it’s a nebulous term,” he said, grinning widely after realizing his contradiction in terms. Lott said he believed that ideology itself could no longer serve as the basis for a filibuster. “But it’s not because you think these judges are too conservative,” he added. “We elect a conservative president, the odds are we’re going to get conservative judges. “And we’re going to get a conservative on the Supreme Court,” Lott continued. “So get happy, Senator Schumer and Barbara Boxer,” he said, referring to New York Democrat Charles Schumer and California Democrat Barbara Boxer, two of the Senate’s most liberal members. T.R. Goldman, congressional correspondent for Legal Times , can be contacted at [email protected]

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