November 10, 2004|By Julie Hirschfeld Davis | Julie Hirschfeld Davis,SUN NATIONAL STAFF
WASHINGTON - The raging fight over the federal judiciary that has long divided the two parties has sparked a heated Republican tussle on Capitol Hill, as conservatives and moderates feud over how much power President Bush should have to advance a Supreme Court nominee.
Sen. Arlen Specter, the moderate Pennsylvania Republican in line to chair the Judiciary Committee, is under strong pressure from conservatives in his party to promise he would support a move to give Bush's nominees an up-or-down vote in the Senate by helping GOP leaders force a change in a nearly century-old rule to prevent a judge from being blocked by a filibuster.
It is highly unlikely that the change will occur, say senior aides on both sides, but an intensive push for it was awakened last week when Specter, a supporter of abortion rights, touched off a firestorm in his party's ranks by saying Bush would have trouble winning confirmation of a Supreme Court nominee who opposes abortion rights.
The issue has taken on greater urgency in recent days, after Chief Justice William H. Rehnquist, 80, revealed that he had been diagnosed with thyroid cancer and delayed his return to the court, indicating that his illness is grave and his retirement could be imminent.
A promise to help alter long-standing Senate rules is part of the penance some Republican conservatives are demanding from Specter, whose comments were widely interpreted as a veiled warning to Bush against nominating staunch conservatives who oppose abortion rights.
The strong reaction - which has reverberated around the country, prompting a flood of phone calls to Capitol Hill and a "pray-in" yesterday to block Specter from the chairmanship - made it clear that conservatives see the judicial fight as a gauge of Bush's power in his new term, and that they plan to use it to stretch the limits of the president's influence as he sets out to achieve his goals.
"It's one of the key issues on which they voted for President Bush - those 59 million people who did so," said Sen. John Cornyn, a Texas Republican who is among the conservatives pressing Specter to endorse the filibuster rule change. "People expect, and they regard it as a fair process, where nominees go through the [Judiciary] committee, and then go to the floor, and then people get an up-or-down vote."
Specter has said his comments last week were taken out of context. He said he simply meant to acknowledge the mathematical reality of the Senate; even after their gains on Election Day, Republicans have 55 votes in the Senate - short of the 60-vote majority needed to overcome Democratic filibusters. Democrats used filibuster tactics last year to block five of Bush's lower-court judicial picks.
"What I was saying was that when you have to have 60 votes in order to cut off debate ... and you have 55 Republicans, that's an issue we have to face," Specter told CNN this week, "and it is just a political fact of life."
Nonetheless, the fifth-term Pennsylvanian has had to spend the past week mending fences with his colleagues - especially conservatives - and pledging that as chairman, he would work to win Bush's nominees the yes-or-no vote in the Judiciary panel that they would need to move to the floor for confirmation.
Specter did not respond yesterday to repeated requests to his Senate office for an interview.
`Nuclear option'
Specter has long advocated changing Senate rules to ensure that judicial nominees could get through the Senate committee process and to the floor within a set time - a revision that would deny senators the right they have to block a nominee from the floor. He has reiterated his support for such a procedure in private conversations with colleagues in recent days, senators and aides said.
Conservatives want Specter to go much further and endorse a move - sometimes called "the nuclear option," a reference to the heavy fallout it could carry for Senate procedures - that would effectively end the right of senators to use a filibuster to block a presidential nominee. Such action would set a precedent for Senate debates that would allow a simple majority to confirm a judicial nomination, including a Supreme Court justice.
"The bottom line has to be that the president has the right to get a vote, an up-or-down vote, on his nominees," Cornyn said.
Changing Senate rules can take as many as 67 votes, so Republicans would likely have to resort to the nuclear option - essentially short-circuiting regular Senate procedures to set a precedent - to alter the filibuster rules.
Under that scenario, Republicans could ask their presiding officer - most likely Vice President Dick Cheney - to rule that it was unconstitutional to require more than 51 votes to confirm a nominee. Republicans would have to muster only a simple majority to sustain that ruling - thus setting a precedent that judicial nominees could not be filibustered. The rule-change tactic was last used by Democrats in 1975.
