In a Polarized Senate, A Victory for the Middle

Posted on May 25, 2005

Sen. Mark Pryor's eureka moment in the filibuster showdown came on Wednesday, March 9, during a Lamar Alexander speech on the Senate floor about judicial nominations. The Tennessee Republican described what struck Pryor, a freshman Democrat from Arkansas, as a reasonable approach to dealing with federal court nominees: He would vote against individuals he found "extreme" but would not filibuster anyone. Alexander noted that "if a few other senators of both parties would individually make this same pledge, then there would be an end to this discussion of the so-called nuclear option." That got Pryor thinking. If six to eight like-minded senators from both parties were to band together, they could effectively force a compromise that would end most Democratic filibusters without Republicans resorting to the "nuclear option" of changing a hallowed Senate rule. Pryor's next move? "I called my dad," former senator David H. Pryor. "Ooh, that's a hot potato," the veteran Democrat warned his son. Pryor pressed ahead, and on Monday evening he stood beaming before a packed news conference to announce that, after a week of chronic doubts and barely controlled chaos, a bipartisan group much like the one he imagined had forged an agreement that would break an impasse over some of President Bush's judicial nominees while preserving the minority's right to filibuster at least for now. "The first thing I want everyone here to know, we don't have a Thomas Jefferson in the bunch," Pryor told reporters. "This came as a result of perspiration, not inspiration." The two-page agreement that seven Democratic and seven Republican senators produced marked a rare display of power by Senate moderates and centrists. Still, it was a messy process. No one was officially in charge of the deliberations, although Sen. John McCain (Ariz.) emerged as the leader among the Republicans, while Pryor and Sen. Ben Nelson (Neb.), who had started seeking a deal around the same time as Pryor, became the key players for Democrats. Nor was there much order to the process. "We had at least 25 drafts, and we changed it every time we sat down," Pryor said. "We really should have been working off one document." The group's efforts took center stage about a week ago, once formal talks broke down between Senate Majority Leader Bill Frist (R-Tenn.) and his Democratic counterpart, Senate Minority Leader Harry M. Reid (Nev.). Reid had offered to clear two of the seven judges that Bush renominated after they had been blocked by Democrats during Bush's first term, in return for Frist's agreement to drop his threat to change the rules to deny the minority the power to filibuster judicial nominations -- the nuclear option. Frist turned him down. Pryor and his fellow negotiators then began to focus on two main points. Part one addressed pending judicial nominations, which senators said was never really a sticking point, because Reid had signed off on two nominees in his talks with Frist. Negotiators decided to guarantee up-or-down votes for three nominees -- Priscilla R. Owen, Janice Rogers Brown and William H. Pryor Jr. -- but made no commitment on the fate of two others, William G. Myers III and Henry Saad. That section was the first to be put to rest, senators who participated in the talks said. The second section was more problematic: It addressed the question of when Democrats could use the filibuster, and when Republicans were justified in overturning the rule requiring a 60-vote supermajority to cut off a filibuster. Democrats favored language preserving the right to filibuster in "extraordinary" circumstances over the other two options considered, "rare" and "unusual," because those words were quantitative, while "extraordinary" seemed looser, said a senior Democratic aide who was involved in the talks. Reid, meanwhile, was in regular contact with Pryor, who was helping to craft a portion of the second section spelling out the group's commitment to opposing the nuclear option. Democrats wanted a provision as unconditional as possible, but Republicans wanted a safety valve that allowed them to seek a rule-change vote if they thought Democrats were blocking a nominee unfairly. The last three words added to the text, according negotiators and aides, were "in light of" in the sentence "In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress. . . ." Republicans had wanted "assuming" or "providing," but for Democrats, those words were deal-breakers, because they appeared to leave the nuclear option on the table. Pryor and Sen. Lindsey O. Graham (R-S.C.) concocted the final wording, participants said. A third section was added near the end that stemmed from discussions between Reid and Robert C. Byrd (D-W.Va.), the Senate's senior member and most devout institutionalist. Some years ago, Byrd had been a part of an effort to create an informal list of acceptable judicial nominees, to steer presidents to individuals with strong support. Reid suggested that he revive the idea in the agreement. Byrd, meanwhile, had hooked up with his old friend, Sen. John W. Warner (R-Va.). The two spent the weekend rereading the Federalist Papers and lamenting Bush's neglect of the "advice" portion of the "advice and consent" provision in the Constitution addressing the Senate's review of judicial nominees. So they added language saying, "We believe that, under Article II, Section 2, of the United States Constitution, the word 'Advice' speaks to consultation between the Senate and the President," and urged the White House to consult with Democratic and Republican senators before submitting nominees for consideration. Other negotiators said that Warner and Byrd helped to enhance the group's image and credibility. "They each have a great deal of credibility within their respective caucuses," said Sen. Susan Collins (R-Maine), one of the dealmakers. "Neither of them can be dismissed as being outside the mainstream . . . so they're less suspect, if you will." From the beginning, negotiators had no idea whether they could reach a final agreement. "No one could predict the outcome," Warner said. McCain, who hosted many meetings in his office, said he thought the talks would break down "a hundred times." © 2005 The Washington Post Company