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The Senate moved one step closer Thursday to pulling the trigger on the “nuclear option” on judicial filibusters after the Senate Judiciary Committee pushed through two of President George W. Bush’s most controversial circuit court nominees on a straight party-line vote. The nominations of Janice Rogers Brown for a seat on the U.S. Court of Appeals for the D.C. Circuit and Priscilla Owen for a seat on the 5th U.S. Circuit Court of Appeals were each approved by a 10-8 vote. The partisan vote count had been widely expected; both nominees had already been voted out of committee and successfully filibustered in the last Congress. Although senators from both sides of the aisle hailed Thursday’s vote as historic, it was largely a replay of previous debates on the two nominees, and the party-line vote count had already been predicted by Sen. Arlen Specter, R-Pa., the committee’s new chairman, at the start of the hearing. The votes are important, however, because they are the first circuit court nominees to leave the committee who have already been filibustered by Democrats in the previous Congress. And according to Democratic leaders, there is no reason Owen and Brown will not be filibustered again, as soon as Senate Majority Leader Bill Frist, R-Tenn., decides to bring either nominee to the floor of the Senate. “This is an important and historic meeting leading to a major crisis in the Senate we’ve never had before,” said Sen. Charles Schumer, D-N.Y., who insisted on speaking out against Owen despite entreaties by Specter that members forgo lengthy speeches and move ahead with a vote. “We’re doing it as a prelude to setting up the greatest constitutional crisis the Senate has ever faced.” Former Senate Legal Counsel Thomas Griffith, who has also been nominated for a seat on the D.C. Circuit, was approved by the committee last week on a 14-4 vote. But Democrats have said they will not filibuster Griffith, who has been criticized for not becoming a member of the Utah Bar despite being general counsel of Brigham Young University. The votes on two more controversial circuit court nominees — North Carolina federal Judge Terrence Boyle, slated for a slot on the 4th Circuit, and Judge William Pryor, who was given a recess appointment to the 11th Circuit that expires at the end of the year — were held over for another week at the request of Democrats. Republicans have criticized Democrats for exercising the filibuster, which requires 60 votes to defeat, in judicial nominations, arguing that the Constitution’s advise and consent clause means that each nominee must be allowed to have an up or down vote. Senate Democrats currently have 45 members, including Vermont Independent James Jeffords. Republicans have 55 members, so if each party votes in lockstep, judicial nominations can be effectively blocked. “The majority of the Senate will not be impeded in its right to bring a nomination to the floor,” explained one legal adviser to Senate Republicans, speaking to reporters after Thursday’s committee votes. For months now, Senate Republican leader Frist has been looking for ways to eliminate the Democrat nominations filibuster. The most likely scenario, according to Republican and Democratic Senate aides, is for Frist to invoke an arcane parliamentary procedure that would effectively force subsequent nomination votes to be kept to a simple majority. Senate Minority Leader Harry Reid, D-Nev., has in turn promised to bottle up Senate business with another parliamentary maneuver if Frist’s so-called nuclear option is invoked. For now, each side is engaged in an elaborate game of chicken. The dilemma, explained the Republican legal adviser, is that “if you do nothing, then the filibusters of the 108th Congress become hardened and entrenched. But if you do something, people will complain as well.” The Frist team has been sending out reams of information about the nuclear option, and Democrats have responded in kind with their own public relations offensive. But the majority leader, who has all but announced he is seeking the Republican nomination for president in 2008, is facing intense pressure from conservatives to act. If Frist does use the parliamentary option to remove judicial filibusters, possibly as early as within the next two weeks, a series of conservative circuit court nominees already filibustered by Democrats in the last Congress will presumably be approved by the full Senate. Democrats complain that Owen, a justice on the Texas Supreme Court, follows her own brand of conservative judicial activism. They point in particular to a series of cases involving parental notification requirements for minors seeking abortions. According to Democratic senators, Owen interpreted too narrowly a state law that allows minors to seek abortions in certain situations without telling their parents. Republicans insist that Owen was not reinterpreting legislative intent, while Democrats claim the opposite. “I know Owen personally,” said Texas Republican Sen. John Cornyn, himself a former Texas Supreme Court justice. “And I feel strongly that her personal views would be subjugated to the views of the elected representatives of the people.” Responded Schumer: “Her record is a paper trail of when she knew better than 100 years of legal tradition. I’m proud to oppose this nomination.” The same themes echoed in the debate on Brown, a California Supreme Court justice, whom the Senate Judiciary Committee’s ranking Democrat, Vermont’s Patrick Leahy, accused of a “disregard for precedent,” an “inconsistency in judicial interpretation,” and a “tendency to inject her personal opinions into her judicial opinions … in the true sense of the words — a judicial activist.”

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