Owen Proceeds toward an OK; Anger Grows; Liberals, Conservatives Split on Terms of Deal

Article excerpt

Byline: Charles Hurt, THE WASHINGTON TIMES

Senate Democrats yesterday abandoned their filibuster against Texas Supreme Court Justice Priscilla Owen, who was nominated more than four years ago to the 5th U.S. Circuit Court of Appeals.

The floor action to end debate and allow an up-or-down confirmation vote passed overwhelmingly, on an 81-18 margin aided by 23 Democrats who reversed themselves yesterday after having prevented the Owen nomination from being voted on for years.

It reversed four previous votes and was the first test of the dramatic last-minute deal struck Monday night to avert the "nuclear option" with which Republicans had planned to clear the filibuster.

The Democratic reversal proved that "this is about the politics of character assassination, the politics of personal destruction," said Sen. John Cornyn, Texas Republican and ardent supporter of Justice Owen. "In Washington, perhaps people can be forgiven for believing that happens far too much."

But even as Justice Owen's nomination proceeded toward confirmation as early as today, both sides remained divided over the precise meaning of the deal that cleared the way for her and two other nominees but left available to Democrats the judicial filibuster, which Republicans contend is unconstitutional.

The primary point of contention is the definition of "extraordinary circumstances" under which the deal permits Democrats to mount future judicial filibusters without facing Republican retribution such as the nuclear option.

"The terms 'extraordinary circumstances' do not lend themselves to any easy interpretation," Senate Judiciary Committee Chairman Arlen Specter said yesterday. "But when the Democratic leader observes that means 'occasional' and 'very infrequent,' that is very reassuring."

Within minutes of the deal's announcement Monday night, NARAL Pro-Choice America announced that "extraordinary circumstances" should include any nominees who don't state their positions on Roe v. Wade, the court case that made abortion a constitutional right. Other liberals have defined "extraordinary circumstances" as any vacancy on the Supreme Court.

Several conservative groups, including the Committee for Justice, came to quite a different conclusion because the deal includes unfettered confirmation votes for Justice Owen and two other conservative jurists - California Supreme Court Justice Janice Rogers Brown and former Alabama Attorney General William H. Pryor.

"The fact that Senate Democrats are willing to allow cloture on Owen, Brown and Pryor indicates that conservative judicial philosophy cannot be considered the basis for a filibuster, or an 'extraordinary circumstance,'" said Sean Rushton, executive director of Committee for Justice.

Anyone looking yesterday for clarification from the signers and drafters of the Monday compromise didn't find it.

Asked what he meant by the phrase, Sen. John McCain, Arizona Republican, replied: "It's like child pornography, my friend. You know it when you see it."

Sen. Ken Salazar, Colorado Democrat, responded by saying, "I want judges to be fair, impartial and will uphold the law."

Asked whether Mr. Bush's nominees fail to meet those credentials, Mr. …