Democrats revive filibuster threat

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - President Bush’s nominee to the Supreme Court to replace Sandra Day O’Connor appeared to be skating on thin ice Wednesday, even though the president hasn’t yet revealed who the nominee is.

In the war of nerves leading up to Bush's announcement of his next high court nominee, Senate Democratic leader Harry Reid and other Democrats were signaling Wednesday that the filibuster — extended debate in order to kill a nomination — is an option they might use.

Referring to chief justice nominee John Roberts, who looks certain to win Judiciary Committee approval on Thursday and confirmation by the full Senate next week, Sen. Joseph Lieberman, D-Conn. said, “I don’t think anybody would call him an extremist, or a divisive or confrontational nominee. But if the next nominee is, I think there’d be a real possibility of a filibuster.”

Lieberman sees filibuster potential
Lieberman said Roberts was “a mainstream nominee. But because of the focus on the balance on the court and Justice O’Connor being a mainstream conservative, if the next nominee is not a mainstream conservative, then a filibuster is definitely possible.”

Lieberman was one of 14 Democratic and Republican senators who signed a May 23 accord in which they pledged to not support a filibuster of a judicial nominee unless there were “extraordinary circumstances” which made it impossible to approve the nominee.

Lieberman said Wednesday that under the terms of that accord, “we reserved the right for each of us to make the determination individually to decide that a nominee was outside of the mainstream, the circumstances were extraordinary, and therefore we would attempt to require 60 votes for confirmation.”

Usually 51 votes are required to win Senate confirmation, but it takes 60 votes to overcome a filibuster.

Another Democrat, Sen. Tim Johnson, D-S.D., said Wednesday that he would vote for Roberts but intended that vote “to be a signal to the president that I’m prepared to cast votes for Republican nominees if they are in the jurisprudential mainstream. There is no need for him to have to go to an extreme candidate….”

Provocative Judge Brown
Praising Roberts, Johnson said, “He has not left a trail of inflammatory, extreme comments behind either on the bench or otherwise.”

This seemed a veiled reference to Janice Rogers Brown, a Bush appeals court nominee whom the Democrats filibustered in 2003, but then finally allowed to be confirmed on June 8.

Brown, who is said to be on the list of potential Bush nominees for the impending O’Connor vacancy, gave a speech prior to becoming a federal judge in which she called Franklin Roosevelt’s New Deal “our own socialist revolution,” a term that rankled some Democratic senators.

Some of her rulings as a California Supreme Court justice were also provocatively phrased: she denounced a San Francisco housing ordinance which exacted a fee from hotel owners by writing, "Theft is theft even when the government approves of the thievery. Turning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government.”

One Republican senator and potential 2008 presidential contender, Sen. George Allen of Virginia, scoffed that Reid “doesn't have the votes to filibuster.”

Reid would need 40 other senators to join him to keep a filibuster going.

“The architect of this filibustering of judges, Tom Daschle, is a former Democrat leader,” Allen noted. (Daschle lost his seat to Republican John Thune in last November’s election.) “The people of America think justices ought to have deliberation and examination, with dignity in the process, but ultimately senators ought to get off their cushy seats and vote ‘yes’ or ‘no.’”

Despite Judiciary Committee chairman Arlen Specter's advice to Bush at a Wednesday morning meeting to wait until June before naming an O’Connor successor, Bush’s announcement of the new nominee could come as soon as the Senate finishes its vote on Roberts next week.

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