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.
But, in fact, the terms of the agreement within the Gang of 14 sets a relatively low standard of the advice function, according to Sen. John Warner (R) of Virginia, who with Sen. Robert Byrd (D) of West Virginia, drafted this piece of the resolution.
The key document used in negotiating the language on consultation was an excerpt from Federalist No. 66, written by Alexander Hamilton in 1788. It reads, in part: "It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose - they can only ratify or reject the choice of the President."
The other key element in the Gang of 14 agreement is how senators interpret their commitment to filibuster a judicial nominee only under "extraordinary circumstances." Democrats on the Judiciary Committee say that ideology must be a factor in making that assessment. On Sunday, Sen. Lindsey Graham, one of the GOP signatories, said it was not. "Based on what we've done in the past with [Bush nominees since May 23], ideological attacks are not an 'extraordinary circumstance,' " he said on Fox News.
But Democrats who signed the agreement are leaving their options open. "I'm leaving open my judgment as to what 'extraordinary circumstances' involves," says Sen. Ben Nelson (D) of Nebraska. He says there will be "no surprises," and that members of the Gang of 14 have ongoing discussions on this point.
A test case of the agreement is whether a nominee as conservative as Janice Rogers Brown, confirmed to the D.C. Circuit Court of Appeals, could get past a filibuster threat for the Supreme Court. Senator Pryor says it's not clear. "Every nomination is different.... I would hope that Janice Rogers Brown would not ever be considered for the US Supreme Court. But I'd like to reserve judgment on that. I may be wrong about her. She may get on the D.C. circuit and be a wonderful surprise. I may change my mind on her over time. Let her have some time to develop there and show what sort of judge she may be," he said.
The 14 signatories include Republicans John Warner of Virginia, John McCain of Arizona, Olympia Snowe and Susan Collins of Maine, Mike DeWine of Ohio, Lindsey Graham of South Carolina, and Lincoln Chafee of Rhode Island; and Democrats Robert Byrd of West Virginia, Joseph Lieberman of Connecticut, Ben Nelson of Nebraska, Mary Landrieu of Louisiana, Daniel Inouye of Hawaii, Mark Pryor of Arkansas, and Ken Salazar of Colorado.
Four of the Democrats (Nelson, Byrd, Landrieu, and Pryor) are from largely Republican States, and could be targeted in elections by conservative ads if the accord falters.