Filibuster Storm Brews Over Judicial Nominations

WASHINGTON, D.C. (WOMENSENEWS)–In their campaign to compel approval of the administration’s judicial nominees, Republicans are focusing on two female nominees.

The strategy, say insiders, will allow Republicans to paint Democrats who block votes on the nominations of either Janice Rogers Brown or Priscilla Owen–two conservative women who have been nominated to appellate court positions–as sexist.

Republicans are also planning to play the religion card against Democrats. Senate Majority Leader Bill Frist plans to appear this Sunday on a nationwide telecast organized by the Family Research Council and originating from a fundamentalist church, where he is widely expected to accuse those who oppose Bush’s nominees as being “anti-faith.”

President Bush appointed Brown and Owen to federal appellate courts in the 108th Congress, but Democrats blocked votes on their nominations, citing objections to their records on reproductive rights, civil rights, workers’ rights and consumer rights.

Democrats also filibustered eight other appellate court nominees because they said their records were also out of the mainstream. They did so by preventing Republicans from reaching the 60 votes needed to invoke cloture, or end debate on the nominations. This procedure is a kind of filibuster–a maneuver senators use to stall or block legislation.

At the beginning of his second term, Bush re-nominated Brown and Owen, as well as many other nominees who were blocked in the 108th Congress. Now, insiders say, Republicans might use a floor vote on either woman’s nomination as a launching pad to change the chamber’s rules to ban filibusters of judicial nominations.

If successful, the strategy would have enormous implications for women’s reproductive rights because the minority party would lose its ability to block nominations to the federal bench, including the Supreme Court.

“If they eliminate the filibuster, the Senate will most likely rubber stamp whomever George Bush sends to them,” said Vicki Saporta, president of the National Abortion Federation, an association of abortion providers based in Washington, D.C.

Saporta said two of the administration’s “model” justices are Clarence Thomas and Antonin Scalia. Both, she said, have said extensively that they are opposed to the Supreme Court decision legalizing abortion and would vote to overturn it.

“That is the type of justice that would most likely be sent to the Supreme Court, which is not what Americans want,” Saporta said.

With new anti-choice allies on the court, many legal advocates believe the landmark decision legalizing abortion would be highly likely to be reversed.

‘Good Ones to Move Forward With’

Brown, an African American who serves on the California Supreme Court, and Owen, a white conservative who sits on the Texas Supreme Court, “would be good ones to move forward with,” said Sen. George Allen, a Virginia Republican who served as the head of the National Republican Senatorial Committee in the last Congress.

Both deserve up-or-down floor votes, Allen said, because both are highly qualified. He added that Democrats have “leaned over backwards” to deny both women–and a number of other appellate court nominees–their right to floor consideration.

Critics, however, charge that Republicans are focusing on Brown and Owen because they are women. If Democrats oppose their nominations, goes the suspicion, Republicans would charge Democrats with blocking the advancement of women, and in Brown’s case, minorities.

“It is an astute strategy because it will allow Republicans to accuse Democrats of sexism if they oppose either woman, or racism if they oppose Rogers Brown,” said Julie Bernstein, spokesperson for the Alliance for Justice, a progressive advocacy organization based in Washington, D.C., that tracks judicial nominations.

Republicans, Bernstein said, have played the bias card in the past, accusing Democrats of being anti-Catholic in blocking William H. Pryor to the 11th Circuit Court of Appeals and being anti-Hispanic in blocking Miguel Estrada to the D.C. Circuit Court of Appeals.

“They make that case with everybody,” said Sen. Dianne Feinstein, the California Democrat who sits on the Judiciary Committee. “I think people see through it.”

Game of Judicial Brinksmanship

When Bush re-nominated Brown and Owen–as well as other appellate court nominees who were filibustered by Democrats in the last Congress–many Democrats took it as a slap in the face by a president who had pledged, after winning reelection, to work with the minority. That started a game of judicial brinksmanship.

Democrats vowed to continue blocking nominees they consider ideologically extreme.

Republicans parried with a threat to employ an arcane parliamentary procedure to eliminate filibusters of judicial nominees. Democrats warned that if Republicans strip their filibuster power they would bring the Senate to a virtual standstill by stalling major legislation.

Ending the filibuster would require a few procedural steps.

Under the most likely scenario, Frist would first move to invoke cloture, or shut off debate, when the Democrats next filibuster a judicial nominee, such as Owen or Brown.

If Republicans, who hold 55 seats, fail to reach the 60-vote threshold needed to end debate, one of them would call a point of order questioning the use of filibusters against judicial nominees.

The parliamentarian would likely side against Republicans. That would prompt the presiding officer of the Senate, most likely Vice President Dick Cheney, to overrule the parliamentarian and declare filibusters of judicial nominees out of order.

Democrats would presumably object, and the question would be set to a vote. Republicans would need a simple majority of those present and voting–or at least 50 votes, assuming Cheney would break a tie in favor of the Republicans–to change the Senate rules and ban filibusters of judicial nominees.

Frist Working with Reid

Last November, Frist said he was prepared to use every tool at his disposal to end Democratic filibusters of judicial nominees and reiterated the warning since. But he has also said he is working with Senate Minority Leader Harry Reid to avert a judicial showdown. Frist is expected to make a move in the next few weeks.

As Frist is reportedly mulling a 2008 presidential bid, religious and social conservatives–a potentially key support group–are strongly pushing to eliminate the filibuster.

“Filibusters of judicial nominees should be declared out of order,” Douglas Johnson, legislative director of the National Right to Life Committee, said in a statement.

A broad coalition of progressive groups, including many women’s rights organizations, have launched a counter-campaign with solid backing from Senate Democrats and even some conservative groups, such as the National Right to Work Committee and Gun Owners of America.

Republicans, on the other hand, are divided over whether to ban filibusters of judicial nominees. Republican Sens. Olympia Snowe of Maine, Lincoln Chafee of Rhode Island and John McCain of Arizona have expressed strong opposition to the proposal. Several others are undecided, making the outcome unclear.

Allison Stevens is Washington Bureau Chief at Women’s eNews.