WASHINGTON - Two of the Senate's senior statesmen, Republican John Warner and Democrat Robert Byrd, are stepping to the forefront of efforts to avert a showdown over whether an out-of-power party can use Senate filibusters to effectively thwart a president from reshaping the nation's courts to his liking.
But time was running out on Byrd and Warner's attempt to bridge warring senatorial factions, with Senate Majority Leader Bill Frist, R-Tenn., starting a countdown Friday on how long senators would debate Texas Supreme Court Justice Priscilla Owen's nomination to the 5th Circuit U.S. Court of Appeals.
If senators are forced to vote next week on Owen's nomination to the New Orleans-based court, centrists say a historic confrontation is sure to follow over whether filibusters of appellate and Supreme Court nominees should be prohibited during the rest of the Bush presidency.
"Once you start into the procedural votes, the real procedural votes on the first judge, then it's going to be very difficult to put the genie back into the bottle," said Sen. Mike DeWine, R-Ohio. "I think most of us look at that as once you have that first vote, it's going to be very difficult to get a deal done."
Frist was expected to announce Friday that the Senate would hold a test vote on Owen on Tuesday, and if she doesn't garner 60 votes - the threshold for overcoming a filibuster - he then will move to have the Senate declare that filibusters are illegal for Supreme Court and federal appellate court nominees - a change that has been labeled the "nuclear option."
The Republican-controlled Senate has been debating Owen's nomination since Wednesday. "We will continue that debate," Frist said. "Ten hours, 20 hours, 30 hours, as many hours as it takes for senators to air their views. But at some point, that debate should end and there should be a vote."
While it takes 60 votes to overcome a filibuster, Republicans intend to supersede the rule by a simple majority vote. With 55 seats, Republicans could afford five defections if all 100 members vote and still prevail on the strength of Vice President Dick Cheney's ability to break ties.
Democrats have threatened to slow the Senate's business to a crawl if Republicans prevail, and they served up a preview this week by invoking a rule that prevented some committees from meeting.
"The attempt to do away with the filibuster is nothing short of clearing the trees for the confirmation of an unacceptable nominee to the Supreme Court," Senate Democratic leader Harry Reid of Nevada said. He accused the president of an attempt to "rewrite the Constitution and reinvent reality" with his demand for a yes-or-no vote on all nominees.
Republican Sen. Rick Santorum of Pennsylvania countered, "It's the equivalent of Adolf Hitler in 1942." He said Democratic protests over Republican efforts to ensure confirmation votes would be like the Nazi dictator seizing Paris and then saying: "I'm in Paris. How dare you invade me? How dare you bomb my city? It's mine."
Democrats already have blocked seven Bush nominees, including Owen, with filibusters. Centrists hope to strike a deal that would stop Frist from banning judicial filibusters while blocking Reid from filibustering all of Bush's most controversial nominees at the same time.
By agreeing among themselves, any six Republicans and six Democrats would hold the Senate's balance of power, making it impossible for Frist to engineer a change in procedures on one hand, and dooming future filibusters on the other.
One area under discussion involved which of Bush's nominees would be cleared for confirmation and which would continue to be held up. Under discussion when the day began was a plan to allow final votes on Owen, California Supreme Court Justice Janice Rogers Brown and former Alabama Attorney General William H. Pryor, as well as Michigan nominees Susan Neilson, Richard Griffin and David McKeague.
The nominations of William G. Myers and Henry Saad would remain stuck.
Warner, R-Va., and Byrd, D-W.Va., are trying to craft language on another part involving an exchange of "good faith" pledges by lawmakers. Democrats would agree not to filibuster future appeals court or Supreme Court nominees except in extraordinary cases. Republicans would agree not to support any changes in the filibuster procedures, although it was unclear what circumstances, if any, would permit them to change their minds.
Warner, as he went in and out of meetings in the office of Sen. John McCain, R-Ariz., refused to talk to reporters. But Byrd acknowledged he was working with Warner and said their language could be the "nuclear shield."
"It might prevent the nuclear option from ever being detonated," said Byrd, the chamber's most senior senator.
Byrd also suggested he and Warner were working on language where the president would pick his court nominees from a pool of suggested candidates "possibly selected on the basis of discussions with state and federal chief justices, lawyers, people from academia and so forth."