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Deal would allow vote on 5 Bush judicial picks

Proposal leaves filibuster for 'extraordinary circumstances'

Senate Majority Leader Bill Frist, left, and Minority Leader Harry Reid are at odds over the judicial filibuster's use.

WASHINGTON (CNN) -- A bid to end the Senate standoff over President Bush's judicial picks would let five nominees advance to a final vote while preserving the right of a minority of senators to block two others.

A draft of the deal, which CNN obtained Thursday, would allow confirmation votes on five of the seven nominees Democrats have blocked -- including Priscilla Owen, whose nomination to the 5th U.S. Circuit Court of Appeals faces debate in the Senate this week.

The proposal would preserve the use of the filibuster for judicial nominees, but calls for its deployment only in "extraordinary circumstances."

A meeting of centrist senators lasted late into the night Thursday, with no agreement and talks are to resume by phone Friday.

Democratic Sen. Ben Nelson of Nebraska, a driving force in the negotiations, said it is highly unlikely an agreement would be reached before Monday evening after the Senate reconvenes.

Democrats have blocked Owen's nomination from coming to a vote four times.

This time, Majority Leader Bill Frist has threatened to change Senate rules to end filibusters for judicial nominees with a vote requiring only a simple majority of 51 if Democrats refuse to end debate -- a step dubbed the "nuclear option."

If that happens, Democrats have threatened to respond by slowing Senate business to a crawl and disrupt the GOP's agenda.

The filibuster, a form of extended debate that dates to the 1850s, can be overcome only by a three-fifths majority of 60 votes, a move known as invoking cloture.

With Democrats holding 44 seats in the 100-member Senate, they could in theory hold up a vote on a nominee indefinitely.

Thus, they have been able to keep nominations from coming to the floor by only threatening to filibuster them. Rarely is a nomination actually filibustered, in the full sense of the term. (Full story)

Democrats used threats of filibuster to block only 10 of Bush's 218 first-term judicial nominees. The president renominated seven of them this year, including Owen.

Republican Sen. Rick Santorum of Pennsylvania said Democrats have abused the filibuster.

"The audacity of some members to stand up and say 'How dare you break this rule,'" Santorum said on the Senate floor Thursday.

"It's the equivalent of Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine.' "

Plan details

Under the compromise plan floated Thursday, six Democrats would vote to end debate on Owen and four other nominees.

In exchange, six Republicans would vote against the "nuclear option," leaving the GOP a vote shy of a majority.

Nominees William Myers, a pick for the California-based 9th U.S. Circuit Court of Appeals, and Henry Saad, for the upper Midwest's 6th Circuit, would remain blocked.

The draft agreement also calls on Bush to consult with home-state senators and members of the Senate Judiciary Committee from both parties before sending up a nominee.

The Senate started on its way to a showdown over Bush's nominees Wednesday, when Frist brought Owen's nomination to the New Orleans-based 5th Circuit to the floor. (Full story)

Frist, a Tennessee Republican, said Thursday that while senators are entitled to oppose Owen's nomination, "they should express that choice, give that advice and consent, by a vote, an up or down vote, yes or no, confirm or reject."

"They should not hide behind a procedure that prevents 100 United States senators from their responsibility, their duty to vote 'yes' or 'no' on the nominee," he said.

Minority Leader Harry Reid of Nevada said he was "confidently optimistic" that six Republicans would buck Frist and vote to preserve the filibuster.

"They need to decide if they're voting for the man or the Constitution," Reid said.

The Democratic leader said there was "no dissent" in his party as a showdown loomed, and any compromise "has to preserve Senate rules."

Owen's background

Bush has pushed hard for Owen's nomination.

A two-term Texas Supreme Court justice, she was first elected in 1994 in a campaign run by Karl Rove -- now Bush's top political adviser. Frist noted she won re-election with 84 percent of the vote in 2000.

"If you look fairly at Justice Owen's record, you will see a well-qualified, mainstream judge," Frist said.

Owen's supporters praise the judge for her no-nonsense rulings, saying she is a strong conservative with a high rating from the American Bar Association.

Opponents accuse her of being an extreme-right activist who favors corporations over working families, opposes abortion rights and is too slow in writing opinions.

Reid noted that Attorney General Alberto Gonzales, who once sat on the Texas Supreme Court, called a dissent by Owen and others in a 2000 abortion case "an unconscionable act of judicial activism."

Gonzales told the Senate Judiciary Committee earlier this year that he was not referring specifically to Owen in that case.

Larger issue

While the current dispute centers on federal appeals court nominees, it comes as the prospect of at least one vacancy may come open on the U.S. Supreme Court.

CNN legal analyst Jeffrey Toobin said the outcome of the political fight eventually could affect the high court's makeup. (Full story)

Democrats have blocked meetings of Senate committees while the debate continues. Democratic Sen. Tom Harkin of Iowa said the chamber's full attention ought to be on the debate.

But Majority Whip Mitch McConnell said such focus diverted attention from pressing issues.

"We thwarted progress on an energy bill, on a jobs bill, on a disaster relief bill," said the Kentucky Republican.

"Yesterday, an Intelligence Committee meeting had to be canceled. Here we are in the middle of war on terror, and the Intelligence Committee was not allowed to meet."

Meanwhile, the Congressional Black Caucus on Thursday delivered a letter to Frist's office objecting to the nuclear option, saying Republicans used Senate rules to block many black, Hispanic and female nominees during the Clinton administration.

The letter, which 43 members of the House caucus signed, asked for a meeting with Frist.

CNN's Steve Turnham contributed to this report.

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