Senate pact shapes high-court fight

The decision of 14 senators - whether to hold or abandon an agreement to keep the wheels of the judicial appointments moving - is emerging as the wildcard in the looming confirmation fight over the US Supreme Court.

Six weeks ago, the Gang of 14 stunned the Senate by a bipartisan pact to allow long-delayed votes on President Bush's most controversial nominees, while preserving the minority's right to filibuster under "extraordinary circumstances." The deal opened the door to a quick confirmation of six of the president's nominees. It also sidelined, for a time, GOP plans to force a change in Senate rules to end filibusters on judicial nominations, dubbed the "nuclear option."

Now that pact meets its ultimate test: filling a seat on a Supreme Court closely divided on issues ranging from abortion to property rights. Democrats say the nuclear option is off the table for a Supreme Court nomination fight. Republicans say it emphatically is not. In the end, it's the Gang of 14 who decide which side is right.

The key question: How resilient is that pact and the trust that binds it? That hinges on whether the seven Democrats and seven Republicans end up on opposite sides regarding the definition of "extraordinary circumstances."

Members of the Gang of 14 say they don't want to be a shadow Senate Judiciary Committee or to break with their own party leadership. "The 14 do not expect the president to consult with us as a group. We're not trying to become the Judiciary Committee or the arbiters of all these nominees," says Sen. Mark Pryor (D) of Arkansas, one of seven Democrats signing the May 23 agreement.

If the pact holds, minority Democrats will be unable to filibuster a Bush nominee on party lines. Nor will Republicans be able to take the filibuster option permanently off the table. That agreement has two elements: each painstakingly negotiated. Outside groups and party leaders have tried to interpret that agreement, but, in the end, it comes down to the good will and judgment of the 14 who signed it. So far, members say that good will is holding.

An early test of the viability of the agreement is whether the president consults with senators, both Democratic and Republican, before submitting a judicial nomination for confirmation. "Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate," said the 14 in their May 23 agreement.

In a bid to interpret that agreement, Sen. Charles Schumer (D) of New York, a member of the Senate Judiciary Committee, said in a press briefing on Friday that such consultation must involve "real, face-to-face, back-and-forth consultation." Republican leaders insist the choice is up to President Bush and that it need not be negotiated in advance with Democrats.

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