Senators test extent of deal on nominees

WASHINGTON -- A day after a coalition of moderate senators signed an agreement to avoid a partisan clash over judicial nominations, both liberal and conservative senators began to test its limits, with each side serving notice that the Capitol Hill culture war over confirming judges is not over.

The deal, signed late Monday by seven Democratic and seven Republican senators, allowed the nomination of Priscilla Owen to move to a final vote today after four years of roadblocks by Democrats, a development that was applauded by President Bush and Republicans.

Democrats, for their part, celebrated a deal they said defused the ''nuclear option" -- a change in rules that they said would strip them of their right to filibuster judicial nominees and force them to retaliate by slowing Senate business to a crawl.

But some lawmakers predicted that the extraordinary agreement will collapse under its own weight, mainly because Democrats remain free to use the filibuster under ''extraordinary circumstances," and Republicans can still join Senate Majority Leader Bill Frist and vote for a filibuster ban if the Democrats renege on the deal.

''This agreement among these 14 -- to which 86 senators were not a party -- does not solve anything," said Senator John Cornyn, Republican of Texas. ''What it does do is perhaps delay the inevitable."

The biggest problem, several senators said, lies in the definition of ''extraordinary circumstances," a phrase left purposefully vague to help the deal get done, according to one senator involved in the negotiations. Without a precise definition, senators can interpret that threshold on their own -- and they may get that opportunity early next month.

That's when Frist, under intense pressure from angry conservatives, may force a vote on the appellate court nomination of William G. Myers III, a conservative chosen for the left-leaning Ninth Circuit Court of Appeals in San Francisco. Democrats, who say he's a pro-business jurist with no regard for the environment, defeated his nomination by filibuster last year, and have promised to do the same this year.

''He'll be brought up in the normal course of order, and we'll find out if he's 'extraordinary' or not," said Senator Larry E. Craig, Republican of Idaho, Myers's home state. ''There's really no deal until it plays out at length."

Added Senator George Allen, Republican of Virginia: ''I'm disappointed in the deal. I don't feel at all bound by it. William Myers should be accorded a vote. That may be when we have the battle."

Senators yesterday spent much of the day dissecting the agreement, crafted by an eclectic group of moderates and traditionalists from both parties to avoid a showdown they feared would damage the Senate as an institution.

Democrats and Republicans yesterday offered vastly different interpretations of the settlement, reflecting its tenuous hold on the signatories. Democrats insisted that Republicans have guaranteed they won't try to ban filibusters for the rest of the 2005-2006 Senate term, but Republicans said that promise depends on whether the Democrats stick to the deal.

Frist had scheduled a historic vote to end judicial filibusters in the Senate yesterday, a move that would determine the future of minority party rights in Congress. But the deal -- announced Monday as workers wheeled in cots in preparation for a contentious, all-night session -- forced Frist to retreat.

That paved the way for the Senate to vote 81-18 yesterday to prevent the Democratic filibuster and close off debate on Owen's nomination. Initially nominated by Bush in 2001, Owen never got more than 53 votes when her nomination reached a similar stage in previous years.

As a good-will gesture, Senate Minority Leader Harry Reid, who had led the Democrats' fight against Owen, voted with the majority to end debate. But Senators Edward M. Kennedy and John F. Kerry, both Massachusetts Democrats, voted to continue debate, as did three other New England senators: Democrats Jack Reed of Rhode Island and Christopher J. Dodd of Connecticut and James M. Jeffords, independent of Vermont.

Frist said he'll seek approve-or-deny votes on two other judges included in the bipartisan deal, Janice Rogers Brown and William Pryor, though he didn't set a timeline, and they could be delayed past next week's Memorial Day recess. But even as the legislative machinery began to churn forward, Frist warned that his option to ban filibusters is still viable.

''Let me be very clear: The constitutional option remains on the table," Frist said in a speech on the Senate floor. ''I will not hesitate to use it if necessary."

If the Democrats filibuster Myers, it could pressure the Republicans involved in Monday's negotiations to change tack and support the rules change Frist is seeking. If the deal holds, Frist wouldn't have enough votes to change the rules, but if just two GOP senators from the deal changed their minds, it would shift the balance of power.

Yesterday, Senators John McCain of Arizona and Lindsey O. Graham of South Carolina -- two key Republicans who helped hammer out the last-minute compromise -- wouldn't say what they would do if their Democratic colleagues joined a filibuster of Myers. McCain said he wasn't familiar enough with Myers's record to respond, and Graham said he would deal with the situation if it happens.

''You could give me a thousand names, and I'm going to tell you the same thing: We're going to work together to avoid filibusters when at all possible, for the good of the country," Graham said.

Myers cleared the Senate Judiciary Committee in March despite Democratic assertions that he favors big businesses by supporting strict limits on government-imposed environmental protections. Frist's aides wouldn't say whether he will push for a vote on Myers; Bob Stevenson, his press secretary, noted that Frist has repeatedly said he wants votes on all of Bush's nominees.

A showdown over Myers could wind up being a proxy battle over a Supreme Court nominee. With Chief Justice William H. Rehnquist battling thyroid cancer, a vacancy on the high court could come as early as the summer, and Democrats yesterday said they'll filibuster any nominee they consider a political extremist.

Kennedy, a senior member of the Judiciary Committee, said he believes Bush will select a nominee the Democrats can accept, but Democrats will use the filibuster against any candidate they believe isn't qualified.

''We still have that right, sure do, and I don't have any hesitancy," Kennedy said.

''I would be hopeful that whoever's going to be there to replace Rehnquist will not be in that category. I would not expect that that would be the case."

Susan Milligan of the Globe staff contributed to this report. Rick Klein can be reached at rklein@globe.com.