Following Filibuster Compromise, Senate Prepares to Confirm Priscilla Owen to U.S. Appeals Court

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Yesterday, the Senate voted to end debate on the confirmation of Priscilla Owen to the U.S Appeals Court, clearing the way for her confirmation. The vote came after a surprise compromise was reached Monday night that averted a showdown over judicial nominees. The deal — agreed upon by a bipartisan group of 14 Senators — came less than 24 hours before the Republican leadership was expected to change the Senate rules in order to deny Democrats the ability to filibuster judicial nominees. [includes rush transcript]

Under the agreement, the Republican leadership will not implement the so-called nuclear option and Democrats will allow votes to proceed on at least three of President Bush’s nominees for federal judgeships. However, there was disagreement over the meaning of the compromise. Republican leader Senator Bill Frist said that the agreement “if followed in good faith, will make filibusters of judicial nominees in the future, including Supreme Court nominees, almost impossible.” And he said that a ban on the filibuster is still very much on the table. But Democratic Senate leader Harry Reid said that the right of the minority party to filibuster is still available. He said “The agreement that will allow Justice Owen to receive an up-or-down vote also had the effect of taking the nuclear option off the tableThis agreement makes clear that the Senate rules have not changed. The filibuster remains available to the Senate minority.”

  • Josh Marshall, is a contributing writer for the Washington Monthly and a columnist for The Hill. He is the editor of the blog,

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Well, joining us on the phone right now in New York is Josh Marshall, editor of the blog, Welcome to Democracy Now!, Josh.

JOSH MARSHALL: Thanks for having me.

AMY GOODMAN: Can you explain what exactly this compromise is?

JOSH MARSHALL: Well, as you can see with those quotes, I think that the reason they were able to come up with the compromise is that no one really agrees what was compromised on. I think, basically, what happened is that there was an agreement to kick the can down the road a bit. The filibuster is there, but so is the nuclear option. I think that what happened here is, obviously, three of the most extreme judicial nominees are going to be allowed to go to an up-or-down vote on the floor. Although it’s not completely clear to me that each of those three will actually win those votes. So it’s possible that only two will go through. Basically, I think that we —

AMY GOODMAN: Which two do you think?

JOSH MARSHALL: You know, I have heard different things. I have heard Pryor might go down or Brown might go down. I don’t — that sort of stuff is sort of at the level of rumor and speculation. I just — I think that some people — there’s some speculation that an unstated part of this deal included the idea that a number of these republicans will vote against one of those nominees, and that one — you know, one of the three still won’t actually be seated.

AMY GOODMAN: So, go on with what you were saying around the issue of whether —

JOSH MARSHALL: Right. The — I think, you know, we’re not going to know for weeks or even months quite the internal dynamics of this compromise. If this compromise makes any sense among these 14 moderates, seven on each side, it has to be that neither side is going to push the other past its limits. And for that to happen, I think the seven republicans have to exert some sort of influence over the White House for the next judicial nominee, let alone Supreme Court nominee, not to be another hard right nominee. Now, obviously, it’s going to be someone far more conservative than democrats want, but it’s that difference, whether it’s someone like Priscilla Owen or Pryor or something like that. And so, that’s really the issue. You know, if a few months from now the President appoints another nominee who’s just the same, the democrats will filibuster and the whole agreement will fall apart. We’ll be right back where we were.

AMY GOODMAN: So, what do these 14 senators think they accomplished?

JOSH MARSHALL: Well, they accomplished [inaudible] I think that each of these 14 were people who for their own reasons just had institutional reasons they didn’t want this to happen. And again, I really don’t think they did too much more than buy time. Having said that, I think that it is a somewhat better deal for the democrats than it is for the republicans, because Reid did get seven republicans to just on paper, and on principle, say that the right to filibuster in some cases should exist. And I think — my sense of this sort of globally is that the republicans’ whole agenda right now is absolutes: wanting to get every one of their judges, wanting to have things exactly their way. The democrats are in the minority. There’s only so much that can be managed while you don’t have 51 votes in the chamber. So I think that this will be more damaging internally to the republicans than it is for the democrats. I think it’s a painful compromise, but with the options that were available, I think it’s a little better for the democrats than for the republicans.

AMY GOODMAN: We’re talking to Josh Marshall. He is the editor of I wanted to switch for a moment to Social Security, something you also follow very closely: President Bush still going out around the country. Where does it stand right now?

JOSH MARSHALL: Well, you know, sort of as the issue has moved from the front of the pages, President Bush’s approval on this topic has just continued to nosedive, 30% now. So, the original plan, the idea of having carved out private accounts, I think, is as close to dead as it’s ever going to be. I think that where the issue moves to now, is whether, again, a similar group of senators to the ones who just made this judicial nominee compromise, is going to try to make some sort of compromise on Social Security. And I suspect, if they did, or I fear if they did, it would be one — it would probably not include carved out private accounts, which is, you know, a little progress. It would probably include a needless level of cuts, basically Social Security cuts that weren’t — that really were not necessary to insure the long term solvency in the program, that were necessary to make sure that we could keep in place all of the tax cuts that the President has pushed through in the last four years. So, I think that’s — I mean, I think the overall news on Social Security is good because what the President was trying to do a few months ago is just — is totally dead. I think if the democrats remain united, they can really stop any damage from being done to Social Security in this congress, and I think the prospects for them being able to remain united on that issue are relatively good. But as the possibility that — again, these 14 senators, some similar constellation of them, would try for some other — you know, sort of — you know, benefit cut-based compromise. If that possibility is still there, I think it’s just as essential for all of the people who were pushing and making their voices heard over the last six months to continue doing so, and they can just — if this is an issue you care about, you can continue doing so knowing that what you have done so far has had a huge effect and probably continue to have effect through the life of this congress.

AMY GOODMAN: Josh Marshall, the protests. I mean, in Rochester, hundreds — was there something like 700 people came out and protested when Bush was there, around Social Security. And then we have still that Denver situation where people, three people who went were escorted out, told they would have to leave. And now — and it turns out, well, we don’t know who it was that told them. They were under the understanding that it was the Secret Service escorting them out, having believed that it was something to do with a bumper sticker on their car that said something like “No blood for oil.”


AMY GOODMAN: What’s happened in that case and about the protest? Any coverage of this? I mean, that’s a major protest, 700 people in Rochester.

JOSH MARSHALL: Yeah. There was not as much coverage as I thought there might be. There was more in the local press, which is a good thing, because obviously, you know, one of the issues here are these three republican congressmen that the President was up there to push to, you know, to support his plan. And I doubt they will be doing that anytime soon. The case with the Denver Three keeps moving along. I know they’re actually going around the country with a few other people from other cities who had similar things happen to them. So, I think — I’m not precisely sure of the legal status of that. I mean, what’s become more and more clear since that incident, as the three have pushed, you know, in the media, and to some extent administratively — I don’t think it’s gotten before a judge or anything — is that what these were was Republican Party officials basically impersonating Secret Service agents and kicking these people out of a public — a taxpayer-funded event because, as you said, they had a political bumper sticker on their car that some G.O.P. operative thought, you know, thought that anybody with a “No Blood for Oil” bumper sticker on their car was not someone who had any business being at that meeting. Needless to say, not a premise I agree with.

AMY GOODMAN: They were given tickets to the event by their republican congress member.


AMY GOODMAN: They were given tickets to the event by their republican congress member.

JOSH MARSHALL: Yes. This has been, you know — this entire tour that the President has been on — you know, it’s one thing when they actually sort of physically eject people from the venues, but yeah, they have — the entire tour has been based around giving tickets to only people they’re absolutely sure support the President no matter what. And it’s one thing to do that at a campaign event. The campaign event is a private event. But these are taxpayer-funded events, so it’s clearly wrong. I think it’s precisely what — it’s still being figured out precisely what laws it breaks. I mean, one would think just basic — on First Amendment grounds, it shouldn’t pass muster.

AMY GOODMAN: Finally, just back on the issue of the Supreme Court where all of this filibuster issue is going, with Rehnquist taking ill sometimes, going to the hospital, do you have any thoughts on who the possible replacement could be?

JOSH MARSHALL: You know — well, I’d say the best answer is: I don’t know. I think the thing to keep an eye on is that, who the President might choose to succeed Rehnquist as Chief Justice might depend a lot on how the dynamics of this deal plays out over the next few months. If it really seems like those moderate republicans have a little more of the upper hand, it might be more likely that the President would basically promote someone from within the court. Now, that’s not great, considering who the likely promotions are. That’s basically Thomas and Scalia. It’s certainly not going to be the other — any of the other three republican appointees. Outside of that, I really don’t know.

AMY GOODMAN: And Supreme Court nominee just becoming a Supreme Court Justice?

JOSH MARSHALL: Well, then, you would obviously have a new person that would be — that would — I guess what I was talking about is if you had a situation like happened with Berger back in the 80s where you had Rehnquist promoted from being an Associate Justice, Supreme Court Justice, and then Rehnquist replaced by someone else. But as to who, I really don’t know.

AMY GOODMAN: Well, Josh Marshall, we will leave it there.

JOSH MARSHALL: I can’t give you a good answer.

AMY GOODMAN: Josh Marshall, editor of

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