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Toobin: Eye on high court, Democrats win round


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CNN legal analyst Jeffrey Toobin
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A last-minute deal averts a Senate crisis.

Senators talk about the compromise they reached.

Who is Janice Rogers Brown, one of Bush's judicial nominees?

A Democrat and a Republican praise the deal.
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(CNN) -- Fourteen senators reached a bipartisan compromise in the Senate debate over President Bush's judicial nominees, averting a showdown over filibusters. Under the deal, the full Senate will vote on three nominees, while Democrats reserved the right to filibuster two other judicial picks.

CNN's Aaron Brown spoke with legal analyst Jeffrey Toobin about Monday night's last-minute agreement and its impact.

BROWN: Democrats fought hard against all three of the nominees. They agreed to an up-or-down vote on [Priscilla] Owen, [Janice Rogers] Brown and [William] Pryor. Is there a common thread to allowing those to go to a vote and not the other two [William Myers and Henry Saad]?

TOOBIN: Well, they were the highest profile of the people up for these nominations, and they are two women, and the former attorney general of Alabama -- Pryor, who is a popular figure in his own right.

They are, they have been the focal point of this fight, and I think these are the ones that the Republicans needed to get through to have any chance that any Republicans would sign on to this agreement.

BROWN: To get the deal, the Republicans had to have those three?

TOOBIN: Exactly. But the Democrats got a lot in return.

BROWN: OK, because if you read ... a little bit of the reaction from the political interest groups, the conservative interest groups are more unhappy than are the liberal interest groups.

TOOBIN: Very much so. I've been surfing the blogs for the past hour or so, and the Republicans are beside themselves with anger, and the Democrats, while not delighted, are certainly happy with this result.

And it really is all about the Supreme Court. It's not about these nominees.

BROWN: Because it keeps in play ... the "nuclear option," or the constitutional option. ... At least as I read this agreement, each senator decides what an extraordinary circumstance is, and whether to filibuster a nominee or not. And so should a nominee for the Supreme Court come before Congress, that nominee could be filibustered?

TOOBIN: Absolutely. And that's why Democrats are happy, because this vague phrase -- extraordinary circumstances -- 40-plus Democrats could say, "This Supreme Court nominee presents extraordinary circumstances, requiring a filibuster."

[Democrats] can filibuster, and the Republicans, as I read this agreement, have agreed not to change the rules, at least through [the 109th Congress]. That's a major victory for the Democrats.

BROWN: The three judges -- do three judges change in a significant way any appellate court? I mean, they're not on a single appellate court. They're scattered around the country.

TOOBIN: They don't change a lot. They are, you know, more conservative judges on the court. But look, any judge President Bush is going to appoint would be conservative. These three I would say are more conservative than most of his nominees, but there are literally hundreds of federal appeals court judges.

No one makes that much of a difference. So you know, even though they were the focus of this fight, this has always been about the Supreme Court. And that's where the Democrats have, have survived, at least for this round.

BROWN: How big a deal do you think the issue over abortion is in all of these fights? If somehow you could lift abortion out of it, would all of these fights be less intense than they are now?

TOOBIN: Abortion transcends all of these issues. Think about, you know, the issues that the judges -- that have been politically controversial for judges -- abortion and Terri Schiavo. Well, Terri Schiavo ... [the case was] about what President Bush calls the culture of life. It's about the end of life. Abortion is about the beginning of life.

But federal judges and abortion, it has been the issue for 30 years, and it's going to continue to be the issue as we look at the prospect of Supreme Court nominations, perhaps as early as this summer.


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