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Senators Pull an All-Nighter Over Judicial Confirmations

The GOP plans to debate 30 hours to protest the use of filibusters to stall 4 nominees. Democrats point to 168 Bush picks who were confirmed.

November 13, 2003|Nick Anderson | Times Staff Writer

WASHINGTON — Forcing the Senate's first all-night session in nine years, Republicans on Wednesday launched a 30-hour "talkathon" on judges to protest a Democratic blockade that has killed one of President Bush's judicial nominations this year and stalled three others.

Working in hourly shifts to hold the floor and guard against surprise maneuvers, senators from both sides of the aisle accused each other of being in thrall to ideological special interests.

The nonstop faceoff began at 6 p.m., when more than 30 GOP senators marched into the chamber in a show of solidarity for Bush's nominees. The debate plowed on early this morning and was projected to last until at least midnight tonight, and possibly extend to Friday. Cots were set up in rooms near the Senate floor for senators and aides to nap.

Near midnight Wednesday, Sen. Barbara Boxer (D-Calif.) accused Republicans of "whining ... complaining ... crying, crying" about their failure to attain a perfect record of confirming Bush nominees.

But Sen. Jon Kyl (R-Ariz.) said: "It is a solemn responsibility of the Senate to act on the president's nominees. We are not fulfilling that responsibility."

To show that their protest was more than partisan stagecraft, Republican leaders scheduled votes Friday on three nominees, including two Californians who will be getting their first tests before the full Senate: Los Angeles Superior Court Judge Carolyn B. Kuhl, nominated for the U.S. 9th Circuit Court of Appeals in San Francisco, and state Supreme Court Justice Janice Rogers Brown, nominated to the U.S. Court of Appeals for the District of Columbia Circuit.

Democrats predicted that they would block final action on both. Republicans, unsurprised, vowed to make their point and take their case to the public.

"Our goal is very simple: an up-or-down vote on the nominations," said Senate Majority Leader Bill Frist (R-Tenn.). "People can vote up or they can vote down. Just give us a vote."

Referring to the Senate's constitutional role to work with the president on judicial appointments, Frist challenged the Democrats: "Will we be denied our right to give advice and consent?"

Sen. Charles E. Schumer (D-N.Y.), a ringleader of the blockade, asserted that the debate would "boomerang" on Republicans when the public realized that the Senate had confirmed 168 Bush nominees for trial and appellate judgeships and blocked just four by filibuster.

"We have been reasonable," Schumer said. "We have been careful. We have been moderate."

Republicans, he said, will "not be content unless every single judge that the president nominates is rubber-stamped by this body."

The debate gave a preview of fireworks that could be expected the next time a vacancy opens up on the Supreme Court and the Senate is asked to confirm a nominee.

What is being challenged now, and what is certain to be questioned in any Supreme Court fight, is the power of a Senate minority to tie up the chamber.

Republican leaders signaled that they would force a showdown vote Friday on a rules change to gut the minority party's power to stop confirmation of judicial nominees through the tactic of endless debate known as the filibuster. The proposal would allow a simple majority of 51 senators to force final action, rather than the 60 now required to break a filibuster.

But it, too, faces a certain filibuster.

The Senate has 51 Republicans, 48 Democrats and one Democratic-leaning independent. The close partisan divide gives filibusters and filibuster threats added force.

At the White House, Bush spokesman Scott McClellan said: "It's unfortunate that some Senate Democrats have chosen to play politics with our nation's judiciary. There are positions that need to be filled."

Republicans often blocked action on judicial nominations during the Clinton presidency, bottling them up in committee or through the intervention of a single senator. But the GOP says that the Democratic use of the filibuster on the Senate floor against Bush's nominees is without precedent.

This year, Democrats have sustained four filibusters against Bush nominees for appellate courts, leading one -- Miguel A. Estrada, a Washington, D.C., attorney born in Honduras -- to withdraw in frustration. The others were Texas Supreme Court Justice Priscilla R. Owen, U.S. District Judge Charles W. Pickering Sr. of Mississippi and Alabama Atty. Gen. William H. Pryor Jr. Next up are Kuhl, who has been waiting for a vote since June 2001, and Brown, nominated this July.

"The Democrats are attempting to change 200 years of history," Frist charged. "That simply can't be tolerated."

Democrats replied that senators have frequently filibustered judicial nominees in recent years. They noted that President Lyndon B. Johnson's nomination of Supreme Court Justice Abe Fortas to be the court's chief justice was withdrawn in 1968 after Fortas failed to win a vote to force final Senate action.

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