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Toobin: Senate scrap really about Supreme Court

CNN legal analyst Jeffrey Toobin
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Who is Janice Rogers Brown?

The debate on judicial nominees gets bitter in the Senate.
On the Scene
Jeffrey Toobin

NEW YORK (CNN) -- Senators struggled in public and behind closed doors Thursday about filibuster rules and whether to have an up-or-down vote on President Bush's federal judicial nominees.

The so-called nuclear option proposed by the leadership of the Senate's GOP majority would eliminate the possibility of a Democrat-led filibuster that would block such a vote. It would change the rules to allow a simple majority of 51 votes to end debate.

In an interview with CNN's Soledad O'Brien, CNN legal analyst Jeffrey Toobin explained that one reason the battle is so intense is that its outcome could indirectly affect the makeup of the nation's highest court.

O'BRIEN: Well, the Capitol Hill showdown that could trigger a big change in the way the Senate is run is now in day two. In about an hour, Senate lawmakers will begin their debate again over President Bush's judicial nominees. The fight is expected to come to a head next week, but moderate members of both parties are still searching for a compromise. CNN legal analyst Jeff Toobin joins us with a look at the judges who are really at the center of this fight.

Priscilla Owen -- She's sat on the Texas Supreme Court since 1984. Why exactly is she in the cross hairs for the Democrats?

TOOBIN: What's interesting about both of these nominees is there is no question about their integrity, their intelligence. What this is about is their conservative political views, conservative judicial politics.

Priscilla Owen was a protege of Karl Rove, the president's powerful political adviser. He engineered her election ... to the Texas Supreme Court in 1994. She is very pro-business. She was a business lawyer. The most inflammatory accusation against her is that she is trying to engineer the overturning of the right to choose abortion. In one very controversial case, she voted, on a parental notification case, in the minority against the position of Alberto Gonzales, now the attorney general, then a justice on the Texas Supreme Court.

O'BRIEN: He took great exception about it. And that's what we heard Ted Kennedy saying on the floor of the Senate yesterday.

TOOBIN: Right. That has been, his opinion has been used as a tool to beat up Priscilla Owen. ... He said that she engaged in unconscionable judicial activism. That accusation, which Gonzalez has subsequently said, look, it was just one case, I think she's terrific, that's been a big part of the case.

O'BRIEN: And you've got Justice Janice Rogers Brown, also very controversial. Why?

TOOBIN: Also very controversial, a justice of the California Supreme Court. She's a outspoken, much more than Priscilla Owen, an outspoken judicial conservative. She's African-American. She's often compared to Clarence Thomas, comes from a similarly very poor background, is the daughter of Alabama sharecroppers. In her statements on and off the bench, again, abortion is relevant because she has challenged the right to privacy, which is how abortion is defined under, you know, current constitutional law. She's spoken out very forcefully against affirmative action. She is someone who would really, based on her statements, try to change the law, to the extent an appellate court judge could.

O'BRIEN: A lot of posturing about these two specific candidates, and even the other eight that are up for discussion. But really it's a much bigger question, isn't it?

TOOBIN: Absolutely. And, you know, two appellate court judges can't change that much. What this debate, I think, is really about is about the United States Supreme Court and when President Bush has the opportunity to put someone on the bench there.

That's when the so-called nuclear option really matters because that's when the 45 Democrats who are now in the Senate will have no voice if the nuclear option comes through, because what the nuclear option is about is changing the Senate from 60 votes needed to 50 votes needed. And there are 55 Republicans. That's what it's about.

And the Supreme Court vacancies, which we all expect to come starting this summer, that's what this fight, I think, is really about.

O'BRIEN: Behind-the-scenes machinations to try to come to some compromise before they get to the nuclear option, if they do.

TOOBIN: Lots of them.

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