May 19, 2005,
As the Senate debate over ending Democratic filibusters of the president's judicial nominees enters its second day, senators in a bipartisan group of negotiators are focusing on a number of semantic issues that may lead to a settlement of the dispute.
Much of the talk has involved the word "extreme." In recent negotiations, Democrats have demanded that they retain the right to filibuster future nominees whom they deem "extreme." But Republicans note that Democrats have referred to virtually every Bush nominee to whom they object as "extreme." Agreeing to a deal that would allow Democrats to filibuster any nominee they choose to describe as "extreme" would be no change at all.
Now, however, both sides have agreed to use the word "extraordinary." The discussion involves whether Democrats would retain the right to filibuster under an as-yet-undefined set of "extraordinary" circumstances. How "extraordinary" is defined will become critical; for Republicans it would have to create a higher bar for fillibusters than a simple Democratic declaration than a nominee is "extreme."
But even if both sides agree on a definition of "extraordinary," what would be in it for Republicans? So far, Democrats have offered to refrain from filibusters except in those "extraordinary" circumstances in return for a Republican guarantee not to use the nuclear/constitutional/Byrd option for the remainder of the 109th Congress. But if Republicans agreed to that, they would be creating a situation in which Democrats could filibuster under "extraordinary" circumstances while Republicans would be forbidden from using the option under any circumstances. To get around that, Republicans have discussed offering to refrain from using the option except in "extraordinary" circumstances in other words, agreeing to the same conditions as apply to Democrats on filibusters. It is not clear whether Democrats will accept that condition.
But it does appear that Democrats are backing down on the number of nominations they would insist on killing as part of any agreement. In the past, they have offered to let one or two of the filibustered nominees move on to an up-or-down vote in return for an agreement. But one scenario under discussion now has Democrats agreeing to up-or-down votes for all nominees except William Myers and Henry Saad, meaning the other five currently blocked nominees would receive up-or-down votes in the full Senate.
Finally, as the talks go on, so do Republican plans to use the nuclear/constitutional/Byrd option. As of now, Republicans plan to hold a cloture vote on the nomination of Priscilla Owen next Tuesday night. If no agreement is reached by then, Republicans will test the Democrats' commitment to filibuster Owen. If Democrats choose to continue blocking Owen, as they have since 2003, then the GOP plan calls for the vote that will end the filibusters.