Much is at stake as formal debate starts on two nominees to federal appeals courts.
By WES ALLISON, Times Staff Writer
Published May 18, 2005
WASHINGTON - Of all the judicial nominees that Senate Republicans are trying to get past the Democrats, the two who posed for photos with Senate Majority Leader Bill Frist on Tuesday are the most divisive, emblematic of what's at stake in the filibuster fight.
As the Senate teeters on the brink of partisan meltdown, Frist said formal debate would begin today on the nominations of Priscilla Owen and Janice Rogers Brown to federal appeals courts.
It marked Frist's first tangible step toward making good on his threat to change Senate rules to stop the Democrats from using the filibuster to block President Bush's judicial nominees. His decision to use Owen and Rogers Brown as the vehicle - the only female nominees, one of them black - adds another dimension to the expansive public relations war over which side holds the high ground.
Sen. George Allen, R-Va., called the pair ideal for bringing the battle to a resolution.
"Janice Rogers Brown is one of the stories that inspires people," he said. "The daughter of a sharecropper, and where she was raised, and how she achieved - the Democrats will have to explain why they're against people like this."
Under current rules, as few as 40 senators can block a nominee from reaching the Senate floor for a vote. Democrats have used the threat of a filibuster to block 10 of President Bush's 52 nominees for appeals court vacancies, and the president this year has renominated seven of them.
Now Republicans are threatening to change the rules so that a judicial filibuster could be broken by a simple majority. Democrats say that would undermine the Senate's historical respect for minority rights.
Owen, a justice on the Texas Supreme Court, has been tapped for the 5th U.S. Circuit Court of Appeals; Rogers Brown, who serves on California's top court, has been nominated to the U.S. Court of Appeals for the District of Columbia.
"They're as good as an example of the problem as anyone," said Sen. Mel Martinez, R-Fla., noting that both women have excellent ratings from the American Bar Association and are popular in their home states. "The possibility is (that) it's a tougher vote for those seeking to filibuster them."
In a briefing Tuesday, Frist sidestepped questions about why he chose Owen and Rogers Brown first, saying he was simply following the regular order. But three other nominees have been reapproved by the Judiciary Committee as well.
Sen. Jeff Sessions, R-Ala., said their gender "does help to some degree."
"People, frankly, give women more credit for decency and fairness," Sessions said. "And in both of these women you have highly acclaimed legal scholars. . . . They might get more respect."
Both are favorites of the conservative wing of the Republican Party and have strong support among evangelical groups, including Focus on the Family and the Family Research Council. Rogers Brown, 56, is the daughter of an Alabama sharecropper who overcame poverty, and Republicans are quick to note that she was last re-elected with 76 percent of the vote.
Owen, 50, won her last election with more than 80 percent.
Such numbers show they are well within the mainstream, and both "deserve a fair, up or down vote, confirm or reject, yes or no," Frist said while posing for photos with Rogers Brown and Owen at the Capitol. "It's as simple as that."
Democrats paint both as far right of reason, exactly the type of judges they should be allowed to block. Sen. Barbara Boxer, D-Calif., took to the Senate floor Tuesday to lambast a host of Rogers Brown's rulings as bad for rape victims, women, senior citizens and defrauded shareholders.
"This woman lives on another planet, and we were right to stop her from getting on the bench," Boxer said.
She's also opposed by the Congressional Black Caucus and a variety of civil rights groups.
At Owen's Senate Judiciary Committee hearing last month, Democratic Sen. Patrick Leahy of Vermont criticized her for "ends-oriented activism" and said her rulings in Texas consistently favored the interests of big business over ordinary people.
Owen's nomination will be formally introduced to the Senate this morning, but both women will be up for debate. In the Senate, a vote is required to end debate, and that's where the filibuster is generally used. That could come on Friday, with Frist probably seeking the rule change by Monday, an aide said.
The climax has been building for weeks: Students at Princeton University led a mock filibuster to protest the proposed change, and other colleges are following suit. Female Republican members of Congress held a rally for the female judges; female Democratic members are holding one today to protest "Republican abuses of power."
Democrats and Republicans alike are sending a nonstop stream of e-mails loaded with charges, countercharges, quotes from experts and newspaper editorials. Both sides are running print and TV ads.
Sen. Ben Nelson, D-Neb., and several other moderates are still working for a compromise, though prospects looked bleak late Tuesday.
Nelson said he hopes to recruit six Republicans to vote against the rule change, effectively killing it. Six Democrats would then agree not to participate in the filibuster of some nominees.
But it's proving hard to agree on which nominees should be sacrificed, and conservative Republicans strongly oppose blocking any of them.
While many senators are concerned about the effect of this fight on the institution, they're also worried about their own political legacies, Nelson said.
"Whoever coined the phase "herding cats,' it could have been said about the Senate," he said. "Every morning, 100 people get up in Washington, D.C., look in the mirror and see a president."