A Delicate Agreement: Senate Maintains Deal over Nominees, For Now

The Senate has confirmed three contentious nominees to the federal bench -- Pricilla R. Owen, Janice Rodgers Brown, and William H. Pryor Jr. -- as part of a delicate agreement to prevent "the nuclear option" in the Senate.

The deal is holding for now, but critics wonder if nuclear fallout is just one controversial nominee away.

What is "the nuclear option"?

The partisan dispute over judicial nominations was close to causing a near shutdown in the Senate. Furious that Democrats were blocking seven of the President’s nominees to federal appeals courts, Republicans threatened a rule change that has been dubbed "the nuclear option." The nuclear, or "constitutional option," as Republicans call it, would have allowed judicial nominees to be confirmed with just 51 votes by prohibiting judicial filibusters.

In response, Democrats promised to retaliate by refusing unanimous consent agreements, which help legislation to move quickly through the Senate. This reprisal would have slowed the Senate to a near-halt, forcing senators from both parties to spend days on the floor voting on routine housekeeping matters.

But lawmakers came to an agreement at the eleventh hour.

Compromise

Guided by John McCain of Arizona, seven Republicans agreed to vote against the nuclear option if seven Democrats, led by Ben Nelson of Nebraska, promised to support floor votes on three of Bush’s judicial nominees: Owen, Brown, and Pryor.

As part of the agreement, Democrats promised not to filibuster judicial nominees except under "extraordinary circumstances," a vague term that is likely to come up during future judicial battles. And further fights over the judiciary may well be on the horizon, since Supreme Court Justice William H. Rehnquist is suffering from thyroid cancer and is likely to retire.

A postponed crisis

According to Democratic Leader Harry Reid (Nevada), quoted in Congressional Quarterly, "The nuclear option is off the table; we don’t have to talk about it any more in our lifetime. It’s gone." But Republican leader Bill Frist (Tennessee) told CQ reporters quite the opposite: "The constitutional option remains on the table. I will use it if necessary."

The party leaders’ comments make it clear that the bipartisan agreement is a mere cease-fire in an extended conflict. But that’s not to say that the compromise won’t have a long-lasting effect on the nomination process. In the future, President Bush will have to consider the Senate reaction to his nominations, which may mean more moderate nominees ahead.

For more on the judicial filibuster fight, click here.

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Posted on: 6/16/2005