Barring a last-minute compromise by a dozen or more centrists, Senators and aides on both sides expect Tuesday’s vote on the “nuclear option” to produce a razor-thin margin — close enough that Vice President Cheney could both issue the precedent enforcing the new rule and then cast the tie-breaking vote in its favor.
Under this scenario, the fate of the judicial filibuster may rest with a handful of Senate Republicans who continue to withhold how they will vote on the showdown, particularly a pair of “Old Bull” committee chairmen who have more than 50 years of service between them: GOP Sens. John Warner (Va.) and Arlen Specter (Pa.).
By late Friday afternoon both sides continued to remain optimistic, but not overly so.
“Sen. Reid is cautiously optimistic that he has the votes,” said Jim Manley, spokesman to Minority Leader Harry Reid (D-Nev.).
And Bob Stevenson, spokesman to Majority Leader Bill Frist (R-Tenn.), said the GOP would have no qualms thrusting Cheney into the dual role of setting the precedent and casting the tie-breaking vote to enforce the precedent.
“It’s important to establish the principle that these nominees receive an up-or-down vote, and the alternative to that is to deny them an up-or-down vote,” Stevenson said.
With 44 Democrats and the lone Independent, Sen. Jim Jeffords (Vt.), in Reid’s corner, he needs to peel away six Republicans to preserve the minority’s right to filibuster judicial nominations. So far, just three GOP Senators — Lincoln Chafee (R.I.), John McCain (Ariz.) and Olympia Snowe (Maine) — have publicly opposed the maneuver.
That leaves a handful of potential ‘no’ votes for Reid to go after. He will need three of the five to prevail over Frist.
And most prominent among the undecided Senators are Armed Services Chairman Warner, who has taken a lead role in trying to derail Frist’s effort and craft a compromise among centrists, and Judiciary Chairman Specter, who has been the most outspoken Senator pleading with Frist and Reid to stand back from the brink of the nuclear showdown.
Warner, who became Frist’s most prominent supporter in securing his promotion to Majority Leader in December 2002, has refused to take a public position on how he will vote. Instead, he is publicly focusing his efforts toward a compromise. In issuing a statement late Friday about a portion of the compromise plan he is crafting, he reiterated his hope of avoiding a vote.
“While we are not yet there, our group continues to make progress, and we remain hopeful that we can arrive at a mutual understanding prior to Tuesday’s cloture vote,” he said.
In the meantime, Specter suggested Friday that he has not even told Frist about how he will vote. “And I don’t intend to until the roll is called,” he said in a brief interview.
The group weighing the centrist compromise is expected to meet today and review at least its fourth compromise draft. The negotiations have been hampered by disagreements over how to phrase the third and fourth points of the proposal, which foreswear filibusters and the nuclear option.
The Senators involved understand that a deal must be reached by Monday night or early Tuesday — before the expected cloture vote on a nominee sets in motion the nuclear process.
“Then it’s going to be very difficult to put the genie back in the bottle,” said Sen. Mike DeWine (R-Ohio).
In an interview with regional reporters from targeted states Friday, Reid said he had a private commitment from a fourth Republican to oppose the nuclear option but declined to name who that person was. He told the reporters that he had four GOP targets remaining, of which two will be needed to outflank Frist.
But Republicans have privately suspected that Sen. Susan Collins (R-Maine), a moderate who has been actively engaged in the centrist talks, would join her home-state colleague Snowe in opposing the move.
The remaining GOP targets are Warner, Specter, DeWine and Sen. Chuck Hagel (Neb.), according to aides and liberal activists.
Hagel has offered an interesting counterpoint to the other undecided Senators, all of whom have, at one point or another, engaged in the talks to craft a compromise.
Even with three of Thursday’s meetings being hosted by his close friend McCain — whose office abuts Hagel’s on the second floor of the Russell Building — Hagel has taken a pass and not attended any of the nine negotiating sessions held last week.
Aides still described Hagel as undecided on the parliamentary vote to to end judicial filibusters, but they reiterated his outright opposition to the deal that McCain, Warner and others have been working on.
That deal would allow for up-or-down votes on five of the seven filibustered nominees who have been renominated in the 109th Congress by President Bush. The remaining two nominees would essentially be cast aside.
Hagel has taken the stand that every nominee must have a straight majority vote — a position that appears to put him closely in line with Frist.
“I could not agree to that. It’s unfair and it’s not right,” Hagel said in a statement last week.
Still, activists view Hagel as a potential vote against the nuclear option, and the Alliance for Justice, a liberal group active on judicial nominations, bought newspaper ads in Nebraska targeting Hagel.
The Alliance for Justice, which has worked closely with Democratic leadership in the past month, also bought ads in Maine and Pennsylvania. Other groups have also launched ads in the final push, including a pair of outside groups connected to each side’s leadership.
The liberal grass-roots group MoveOn.org, which hosted Reid and other Senate Democrats at a Capitol Hill rally earlier this spring, is airing ads comparing Frist to the “Star Wars” villain Emperor Palpatine. Titled “Senate Wars: Revenge of the Frist,” the ads are running on national cable networks.
And the conservative group Progress for America, which boasts an array of former Hill GOP advisers, bought $50,000 worth of ads in the final four days before Tuesday’s vote. It plans to air the ads on networks in Reid’s home state of Nevada. The ads, titled “Harry,” go after Reid’s harsh statements that Bush was a “loser” and that Federal Reserve Chairman Alan Greenspan was a “hack,” among others.
DeWine is a late entry into the effort to get votes in opposition to the precedent change. After one centrist meeting, he explained that he believes filibusters on judicial nominees are an option that should be left open.
“We should have that option in very extreme case,” he said.
But DeWine, a Judiciary member with a front-row seat at the nomination wars of the past decade, said that Senate Democrats broke tradition by launching such a broad-scale attack on Bush’s nominees with the filibuster.
Asked how he could vote to abolish filibusters when he believes they are proper in rare circumstances, DeWine demurred.
“I’m trying to avoid two bad alternatives,” he said.
A few other Republicans remain outside prospects for ‘no’ votes, including Sens. Lindsey Graham (S.C.) and Lisa Murkowski (Alaska). Both have participated in the centrist talks.
Murkowski’s office said Friday she remains undecided.
Graham, who is usually one of the most media-friendly Senators, has literally ducked and ran out of most centrist meetings. At one point he took the time to give a one-word answer to how the talks were going — “Better” — and then sped away without taking any questions.
The main focus, however, remains on Collins, Warner, Specter, DeWine and Hagel. If three of them join Reid, Frist’s hope for a landmark change to Senate procedure would be dashed.
But if just two of them stray from the GOP field, Cheney will have his biggest moment ever in his role as president of the Senate.