WASHINGTON -- Senators droned on last week, supposedly debating two female nominees for the U.S. appellate bench, but it was a sham. The real issue was the future makeup of the Supreme Court, which explains the audacious Democratic strategy of blocking President Bush's choices for lower courts. The focus on the high court also has resulted in failure so far in seeking a negotiated settlement.
In the 48 years that I have watched senators debate, they usually resemble ships passing in the night -- but never more so than last week. As Democrats engaged in calumny, Republican corrections of their misstatements went unnoted and generally unheard. The real debate was behind closed doors, shaping an agreement that only three judicial nominees need be rejected.
Disagreement came over treatment of imminent Supreme Court nominees. One Republican senator, considered a party-line man, told me he would agree to throw overboard three designated appellate nominees if granted a major concession: a promise never to filibuster the president's Supreme Court choices. But that is a concession not even six Democrats have been willing to make.
Indeed, the question of who shall sit on the Supreme Court is the reason for this crisis. It is the reason key Senate Democrats held an unprecedented meeting in Minority Leader Tom Daschle's office on Jan. 30, 2003. Thanks to Republican discovery of Democratic e-mails, an unprecedented documentary record reveals a pure political power play.
Sen. Edward M. Kennedy, the Senate's 73-year-old liberal lion, has orchestrated a solid Democratic front that has succeeded beyond all expectations. It has kept 16 Bush nominees off the appellate bench, some permanently. But Kennedy went too far. Had he blocked two or three judges, the reaction would have been modest. Judiciary Committee Chairman Arlen Specter, hardly a fire-eating Republican, told the Senate Friday that the nominees are being "held hostage as pawns in a convoluted chess game that is spinning out of control."
If the Daschle-Kennedy power play had been intended to intimidate the Republicans regarding the Supreme Court, it had the opposite effect. Sen. Gordon Smith, a moderate Oregon Republican who had been a "qualified" backer of the "nuclear option" as late as Tuesday, went to the Senate floor Thursday to declare unqualified support.
The situation last week was heated oratory on the Senate floor and complicated negotiations off the floor. The two are mixed, as shown in the treatment of Texas Supreme Court Justice Priscilla Owen, whose confirmation is currently before the Senate. In the basic compromise, only three of the filibustered nominees would be defeated. Would Justice Owen be among the sacrificial victims?
It might be easier to get the six Republican senators necessary to defeat the nuclear option if Owen, a symbolic victim of the Daschle-Kennedy plan, were confirmed. But she has been so demonized in Senate debate that it is difficult for Democrats to swallow her.
Democrat after Democrat has referred to a Texas Supreme Court opinion by Alberto Gonzales, then the court's chief justice and now U.S. attorney general, accusing her of "an unconscionable act of judicial activism." In fact, as Gonzales has made clear, he was not referring to Owen. She has been described on the Senate floor as ruling against a woman raped by a vacuum cleaner salesman. In fact, she said the woman was entitled to compensation from the rapist and his employer but not from the vacuum cleaner's manufacturer.
Owen, in Thursday night negotiations, was temporarily taken off the rejected list. Even if she were thrown under the bus, however, six Republican senators probably would get on board for the ride. But the problem remains the Supreme Court. Democratic Sen. Robert Byrd, the Senate's senior member, suggested a commitment for the president to "consult" with senators of both parties before a judge is named. But "old bull" Republicans would not countenance any such shrinkage of presidential powers.
Sen. Mark Pryor, a first-term moderate Democrat from Arkansas, has led these informal negotiations. I asked him how to get by the Supreme Court stumbling block. "Trust," he replied. "We have to try to learn to trust each other." But would Republicans trust Democrats not to filibuster George W. Bush's Supreme Court nominees without a written guarantee? Not to filibuster Antonin Scalia for chief justice? Not to filibuster Miguel Estrada for associate justice?