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CNN Live Event/Special

Senate Showdown

Aired May 18, 2005 - 09:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


CAROL COSTELLO, CNN ANCHOR: In California, Michael Jackson's teenaged cousin returns to the witness stand today, pointing fingers at Jackson's accuser. The girl says she saw the accuser and his younger brother steal wine from the kitchen at the Neverland Ranch. Jurors also heard from a social worker who claimed she met with the accuser and his family at the same time they claim they were held captive at Jackson's ranch.
And Los Angeles has its first has Hispanic mayor in more than a century. That's right. That election is finally over. Leading in the ballots, Antonio Villaraigosa claimed victory over incumbent James Hahn. Four years ago, Hahn beat Villaraigosa in a close race. Villaraigosa thanked his supporters for his win and he promised to bring the city together and he said, and I quote, "I really love Los Angeles today."

BILL HEMMER, CNN ANCHOR: Not bad.

SOLEDAD O'BRIEN, CNN ANCHOR: Now that I won this time around, I really, really like the people of Los Angeles. Carol, thanks.

COSTELLO: Sure.

O'BRIEN: Some big stories to talk about on Capitol Hill today. The commissioners of the major sports leagues are testifying about steroids. Also this morning, a security hearing where a federal judge is talking for the first time about the murders of her husband and her mother. Also, the showdown over President Bush's judicial nominees and, in fact, that's where we begin this morning.

Joe Johns, at the Capitol for us. Hey, Joe, good morning.

JOE JOHNS, CNN CONGRESSIONAL CORRESPONDENT: Good morning, Soledad. The negotiating continues to try to reach a deal here, but the stage is now set as judicial nominations head to the floor of the United States Senate today.

(BEGIN VIDEOTAPE)

JOHNS (voice-over): The showdown over judges begins today. Up first, Texas Supreme Court Justice Priscilla Owen, whose nomination to the federal bench has been stalled for four years. Tuesday, Republicans launched a media blitz for Owen, and California Supreme Court Justice Janice Rogers Brown. They visited Capitol Hill, and earlier, the White House, where they met with President Bush himself.

SCOTT MCCLELLAN, WHITE HOUSE PRESS SECY.: The role of the Senate is to provide their advice and consent. It's not to provide advice and block.

JOHNS: Senate Majority Leader Bill Frist and Senate Democratic Leader Harry Reid dug in further, Frist arguing that judges need a straight up or down vote.

SEN. BILL FRIST (R), MAJORITY LEADER: Are they really out of the mainstream, or is this really just politics? The best way to decide is to take it to the floor of the United States Senate and let 100 United States senators decide.

JOHNS: Reid insisted Democrats have the right to block judges they oppose, and accused Republicans of trying to break filibusters in a power grab. Reid, a former boxer, says Democrats are ready.

SEN. HARRY REID (D), MINORITY LEADER: We've done everything that we could. We've trained hard. The fight is about to begin.

JOHNS: The basic issue, Republicans want a simple majority vote on judges. But with a possible Supreme Court nomination looming, Democrats won't give up their right to demand 60 votes before controversial nominations can go forward. So Republicans have vowed to change Senate rules and ban judicial filibusters.

Perhaps the best prospect for a deal lies with Senators John McCain and Ben Nelson, a Republican and a Democrat trying to find a way out of the impasse. But those talks seem to be moving very slowly, while the rush toward confrontation appears to be accelerating.

SEN. JOHN MCCAIN (R), ARIZONA: We're just continuing to work right up until the last minute, trying to avert what could have severe repercussions, obviously, for our ability to conduct business for some period of time.

(END VIDEOTAPE)

JOHNS: Now, there does appear to be enough time to still reach a deal. That, in part, because of the possibility of a test vote not coming until Tuesday or Wednesday of next week. The number of senators concerned about this appears to be growing. Senator Bob Bennett of Utah, we're told, has proposed a meeting of the entire Senate on the old Senate floor -- that's the chamber that's closed to cameras -- sometime today, trying to find out if the leaders are interested in getting everybody in the Senate together to talk about this thing today.

Soledad, back to you.

O'BRIEN: Joe Johns for us this morning. Thanks, Joe. Let's take you right back to the Senate floor, in fact. We got the majority leader, Bill Frist, is talking about procedures. We're going to dip in and listen to a little bit.

(JOINED IN PROGRESS)

SEN. BILL FRIST, (R) MAJORITY LEADER: ... under the control of the Democratic leader, and the time from 7:15 to 7:45, under the control of the majority leader or his designation.

SEN. HARRY REID, (D) MINORITY LEADER: Reserving the right to object. Mr. President, first of all, I would ask the distinguished majority leader to amend his (INAUDIBLE) request to have the time begin when we complete our statements today. It might not be right at the quarter to the hour, but whenever that would be, we would rotate on an hourly basis.

UNIDENTIFIED MALE: Mr. President, without objection.

UNIDENTIFIED MALE: Is there objection? A modified request? If not.

REID: OK. Yes, Mr. President, I have another reservation.

UNIDENTIFIED MALE: The Democratic leader.

REID: Mr. President, I would ask the distinguished majority leader, would we not be better off moving to get rid of -- or I don't mean that in a pejorative sense, but clear the calendar of four, at this stage, noncontroversial judges? We could move to Thomas Griffith, who's on the calendar. We could move to discharge and consider the Michigan court circuit nominees, Griffin (ph), McKee (ph) and Nielson. We'd get time agreements on all those. We'd have four circuit judges. They would be able to go to work within a few days, actually go to work.

Otherwise, they're going to be waiting until we go through all this and it would seem to me that that would be the best thing to do. So I would ask the distinguished majority leader if he would agree that we can move to these with reasonable time agreements, prior to moving to Priscilla Owen.

FRIST: Mr. President...

UNIDENTIFIED MALE: Majority leader...

FRIST: Through the chair, we have we have given careful consideration of which would be most appropriate person to begin with and it is Priscilla Owen, so we'll proceed with Priscilla Owen. I believe there are five people on the executive calendar and our intention would be to debate these nominees, one by one, and hopefully, as other nominees come out of the judiciary committee, take them up as well. So we will be proceeding with Priscilla Owen.

REID: Mr. President, one further statement.

UNIDENTIFIED MALE: Minority -- Democratic leader.

REID: In that we've started this process, my friend, the distinguished majority leader, should be advised that we will not agree to committees meeting during the time that we're doing the debate on Priscilla Owen.

UNIDENTIFIED MALE: Is there objection to the request as modified? SEN. TED KENNEDY, (D) MASSACHUSETTS: Reserving the right to object...

UNIDENTIFIED MALE: Senator from Massachusetts.

KENNEDY: I was wondering if the -- our leader is familiar with the letter, which our -- members of our judiciary committee sent to our chairman of our committee that points out that there are now some 30 vacancies on the federal bench, for which the president has not yet sent a nominee to the Senate. And if he would work with the senators of both parties to identify, quality consensus nominees for each of these spots, the vacancy numbers on our courts could be lowered even further.

However, an much as we have offered to work with him, finding these nominees and getting them confirmed, there's been absolutely no response. And I just am wondering whether as we're addressing the issues of one nominee, whether -- and the issue that's before the Senate is filling vacancies on the courts, I'm just -- was interested if the majority leader could -- has any information from the administration when we're going to be able to fill these other nominations, nominees?

FRIST: Mr. President, I'd be happy to look at the letter and request of the administration, what requests are made in the letter and see what the response would be. In the meantime, Mr. President, what I'd like to do is proceed with Priscilla Owen, who is a qualified nominee, who is a nominee that we're going to have a lot of debate on back and forth to determine whether or not she is out of the mainstream, as people say.

And we'll go through regular order and take these nominees that the president has submitted to the judiciary committee that have been fully evaluated in the judiciary committee and who now are on the executive calendar, ready for business, and so we're gonna begin that debate here shortly.

KENNEDY: Reserving my rights further, Mr. President. As I understand, there is a new nominee that is on the Senate calendar, Brian Sanibel (ph), Nevada, that has the general broad support, but that he is not the nominee that we could fill in a matter of moments here, and at least take care of that vacancy.

FRIST: I will -- I don't believe that he is on the executive calendar. He may -- to the best of my knowledge, at least he's not on the executive calendar that's printed today.

KENNEDY: The...

UNIDENTIFIED MALE: ... object. And I should not, but I would also remind everybody that the distinguished Democratic leader has said they have no objection to going towards -- this is a Court of Appeals judge. Thomas Griffith of Utah, the United States circuit judge for the District of Columbia circuit. While Mr. Griffith is one I would vote against for reasons I've already stated, for the nose count I have, he would easily be confirmed. And I would also note that I have total agreement with the distinguished senior senator from Nevada, who has said we'd be willing to do this on a relatively short time. I just mentioned that so that I would not anybody to feel this is a person being held up, even though some of us object to him.

O'BRIEN: You've been listening to the opening debate on judicial nominees that's taking place on the floor of the Senate. And just moments ago, we heard a little bit of back and forth between Senator Reid and the majority leader, Bill Frist. Of course what's at issue here is the bigger issue of the filibuster. There's been negotiations going on behind the scene, trying to negotiate some sort of compromise, or go to the nuclear option, which would at the end of the day blow up the filibuster for nominees. There would be no opportunity to do that.

However, what you're hearing now is some of the senators coming forward, talking about some of the nominees who might more quickly be confirmed or move forward than who they have decided to go with, which is Priscilla Owen. She is a judge who is considered fairly controversial by Democrats, qualified by Republicans, some Republicans. We heard that back and forth just a moment ago.

Let's get right back to Joe Johns who can explain a little bit of what we are hearing. We've heard, Joe, a couple other names brought forward, as names of candidates who should be considered before Priscilla Owen.

Is this to underscore on the Democrats' part that they're willing to move forward and fill some of these vacancies? They've gotten some of the blame for those vacancies in recent days and weeks.

JOHNS: That's just about right, Soledad. The Democrats have been saying for sometime that they'd like to move forward with what they can consensus nominees, nominees who should be able to clear the United States Senate fairly easily, before moving to those more controversial nominees, who could lead to the invocation of the nuclear option, if you will. And that, of course, a battle over whether Democrats should have the right to continue to filibuster, or demand 60 votes on Senate floor, for any of these nominees to get through.

So Democrats are trying to push their continuing position that we ought to work on the judges who are people who can get through, before we talk about these more contentious judges. Of course senator...

O'BRIEN: Before we talk further, Joe, about the more contentious judges, let's listen to Harry Reid again, and he's going back and forth with Senator Frist, as you can see on the screen here. Harry Reid was talking about the nuclear option, saying that he wants to continue the behind-the-scenes meetings that we've been talking about over trying to avoid the nuclear option. Let's listen in.

(JOINED IN PROGRESS)

FRIST: ... engaged in negotiations, and attempts to satisfy both sides over the last, really, four months, five months, since these unprecedented filibusters came before this body after 214 years with a threshold of 50 votes. All of a sudden, the last Congress, it was radically changed by the other side to become 60 votes, denying the sort of people like -- a little bit like what we've just heard over the last few minutes, where I'm try to move to a qualified nominee, Priscilla Owen, and we hear these attempts to delay, even right now, and to sidetrack and consider somebody else, and that's the challenge.

That's why we're on the floor of the United States Senate, with the light of day, with the American people watching at this point, to take it to the body of the United States Senate, and ask that fundamental question, is Priscilla Owen out of the mainstream? 84 percent of Texans think she's in the mainstream, but are 84 percent of Texans out of the mainstream?

To answer to that question is no, they're not out of the mainstream. All we want is a vote, an up or down vote. Accept, reject, confirm, yes, no, that's all we're asking for. We don't want the constitutional option. We didn't ask for the constitutional option. What has happened, because of the other side of the aisle, in shattering the Senate tradition for 214 years, where filibuster was never even contemplated.

Now it's used on a routine basis. One out of every four of the president's nominees that have come over from the circuit courts are filibustered, blocked, not given that responsibility, or given that courtesy of a vote, when that's our responsibility, to give advice and consent.

So in response to my good friend the Democratic leader, yes, let's consider, as proposals come forward, we'll consider all. Both the two leaders spent 50 minutes or so as the papers reported today, talking with people who trying to come to some reasonable conclusion, and we'll continue to do that, and so I'd be happy to consider that, another idea.

I think what's important now, though, is to come to the floor of the United States Senate. Let's shed light on this. Let's take this -- yes, it's an inside-the-Senate decision, and we make our own traditions and rules. But it is important to the American people to see, is Priscilla Owen? Is Janice Rogers Brown, deserving of a vote, yes or no, on the floor of the United States Senate?

So what I would recommend, we continue discussions, but let's proceed with this nominee, continue that debate over the course of the day...

O'BRIEN: You're listening to Senator Bill Frist, and he was just tackling a proposition by -- a proposal by Harry Reid, to continue a discussion behind the scenes about coming to some conclusion over the filibuster before going to a vote on Priscilla Owen. We're going to bring Joe Johns back in again.

And, Joe, we're going to continue to monitor this while you and I chat. You know, for all the "my good friend" and the "distinguished colleague from," there's actually a fair amount of animosity here. In fact, you know, hang on, Joe, we're going to go back to Senator Reid for a second, hear how he is responding to Senator Frist.

(JOINED IN PROGRESS)

REID: ... breaking rules to change rules. That's improper. It will change the Senate forever. That's not good.

UNIDENTIFIED MALE; Is there objection?

KENNEDY: Reserving the right, further right to object. I just want to support what our leader, our Democratic leader. I believe that the record now is that we have approved 96 percent of the judicial nominees of this administration. And as we know, in terms of the -- what our -- reading the constitutional convention that our founding fathers expected that this was going to be -- we were going to exercise our own independent best judgment on nominees.

And if I could ask the majority leader, is this the same Priscilla Owen which our current attorney general suggested unconscionable acts of judicial activism? That is our current attorney general has accused this nominee of that kind of activity. Is this the same Priscilla Owen that is now being recommended, which our current attorney general had made that comment, not once, not twice, not three times, but 11 times?

Mr. President?

UNIDENTIFIED MALE: The regular order has been called for. The senator must either object or permit the request to move forward. Is there objection? Without objection, so ordered...

KENNEDY: Reserving the right for objection, I think I'm entitled...

UNIDENTIFIED MALE; The senator cannot reserve the right to object. You must object or grant the request. Is there objection? Without objection, so ordered. Clerk will report the nominee.

UNIDENTIFIED MALE: Nomination, the judiciary. Priscilla Richmond Owen of Texas to be United States circuit judge.

O'BRIEN: OK, so you heard it right there, Priscilla Owen, in spite of what we heard from Ted Kennedy, Senator Ted Kennedy talking about what the current attorney general has said about her, now moves forward, being considered as a nominee. The debate will begin now on this, on this candidate.

Joe Johns, again, is standing by for us, to talk a little bit more about that. Joe, kind of an interesting moment that we were able to catch that back and forth. Because of course they covered many issues, only very much at the end getting to Priscilla Owen.

Senator Frist, I'm told, responding now to what's being said. Let's go right back to him. Joe, stand by.

(JOINED IN PROGRESS)

FRIST: ... debate the nominee for five hours. Debate the nominee for 50 hours. Vote for the nominee. Vote against the nominee. Confirm the nominee. Reject the nominee. But in the end, vote.

Senators, colleagues, let's do our duty and vote. Judicial nominees deserve an up or down vote.

In this debate, we'll discuss two of the president's judicial nominees. These outstanding nominees, Priscilla Owen and Janice Rogers Brown, both had the support of a majority of senators in the last Congress. But they were denied. They were denied up or down votes. I expect we'll also discuss such consequential topics as the meaning of the Constitution and Senate rules and procedures. No doubt, this will be a spirited debate, as it should be. And I also hope it will be a decisive debate.

So let us begin. In the last Congress, for the first time in history, a minority of senators obstructed the principle of a fair up or down vote on judicial nominees. That was unprecedented. Never in 214 years of Senate history had a judicial nominee with the majority support been denied an up or down vote, yet it happened, again, and again, and again, and again, and again and again.

A minority of senators denied an up or down vote, not just once to one nominee, but 18 times on 10 individual nominees. These men and women, these nominees, are among the best legal minds in America and they all would be serving on the federal bench today. All they needed was a vote. But they weren't given the courtesy of an up or down vote on the floor of the United States Senate.

The minority denied them a vote and set a new precedent. The minority in the last Congress rewrote the rule of advice and consent. They unilaterally increased the threshold for confirmation from 50 votes, where it had been throughout history, to 60 votes. Now, some in the minority say they'll harden the precedent and obstruct judicial nominees that come forth in this Congress. And if they aren't allowed to do so, if the Senate returns to the way it worked for 214 years, they will retaliate.

They will obstruct the Senate's other business. They will obstruct the people's business. They will hold back our agenda to move America forward in energy strategy to reduce our dependence on foreign oil, held back an end to the medical lawsuit abuse to reduce the cost of healthcare, held back a simpler, fairer tax code to create jobs and to encourage economic growth, held back.

A minority of senators will hold America back just because a majority of senators, a majority of people in this body, want to do what most Americans, of all things, expect us to do. And that is to vote. The minority should allow senators to fulfill our constitutional responsibility of giving advice and consent and vote. And they should allow America to move forward.

Mr. President, the principals that endure for 214 years do not endure because they appeal to one party or the other. They endure because they serve a vital purpose. In this case, the principle of an up or down vote ensure the president can fulfill his constitutional duty to appoint judges.

Let me read a passage in the Constitution. "The president shall have power by and with the advice and consent of the Senate to make treaties, provided two-third of the senators present concur. And he shall nominate and by and with the advice and consent of the Senate, shall appoint ambassadors and other public ministers and counsels, judges of the Supreme Court and all other officers of the United States Senate."

The framers wrote in the Constitution that two-third of senators must approve treaties, but they specifically did not require the same number of votes to confirm judicial nominees. After much debate and compromise, the framers concluded that the president should have the power to appoint and the Senate should confirm or reject nominees by a simple majority vote. For 214 years, Republican and Democratic minorities alike restrained themselves. They used restraint. They abided by the framer's design and Senate tradition and gave nominees brought to this floor simple majority up or down votes. That was the practice.

Then came the last Congress. With its obstruction, the minority set a new precedent. 60 votes before the Senate could proceed to an up or down vote on a judicial nominee. For 214 years, the threshold for advice and consent in the Senate was 50 votes, a majority. In the last Congress...

UNIDENTIFIED MALE: Would my colleague yield for a question?

FRIST: Mr. President, I would like to proceed with my statement and then would be happy to yield...

UNIDENTIFIED MALE: Majority leader has the floor.

FRIST: For 214 years, the threshold for advice and consent in the Senate was 50 votes. In the last Congress, the minority party radically increased that threshold to 60. And that is wrong, and we will restore the tradition. This unprecedented threshold gave the minority a virtual veto and effective control over the judicial appointments of the president.

The minority destroyed 214 years of Senate tradition, defied the clear intent of the constitution and undermined the Democratic will of the American people. You can't get much more radical than that. This new precedent cannot be allowed to stand in this Congress. We must restore the 214-year-old principle that every judicial nominee with majority support deserves an up or down vote.

Why? First, the American people elect their senators for a reason -- is to represent them. And they expect us to do our job. The Senate is a deliberative body. We are a proudly deliberative body. But we also have certain responsibilities, which include giving advice and consent on the president's judicial nominations. When a judicial nominee comes to this floor and has majority support, but is denied a simple up or down vote, senators are simply not doing their job. And the sad fact is, we didn't do our job in the last Congress. The minority's judicial obstruction has saddled President Bush with the lowest confirmation rate for appeals court nominees of any modern president. This is disgraceful. We owe it to the people we serve and to the Senate as an institution to do our job. We should vote up or down on judicial nominees.

Second, the judicial branch also has a job to do and it needs judges to do it. Right now, there are 46 vacancies on the federal bench. That includes 17 vacancies on appeals courts. But it's not just the vacancies themselves. Qualified nominees who can fill those seats can't get up or down votes to be confirmed in the Senate.

Let me give you an example. Four of the 17 vacancies on federal appeals courts are in the region than serves my home state of Tennessee. Four of the 17 vacancies. Those nominees have been waiting a combined 13 years for a simple up or down vote on this floor. 13 years they have been waiting.

Either confirm these nominees or reject the nominees, but don't leave them hanging. Don't leave our courts hanging. Don't leave the country hanging. If the nominees are rejected, fine, that's fair. At least rejection represents a vote. But give nominees the courtesy, the courtesy, of a vote.

Third, judicial nominees deserve up or down votes because they deserve to be treated fairly. Let me tell you about the nominees we're about to consider, Priscilla Owen and Janice Rogers Brown. Priscilla Owen has been a Texas Supreme Court justice for the last ten years. She was re-elected with 84 percent of the vote in 2000. Her service won praise from members of both parties. Former Justice Raul Gonzalez, a Democrat, said, "I found her to be apolitical, extremely bright, diligent in her work, and of the highest integrity. I recommend her for confirmation without reservation"

Justice Owen has also been a leader for providing free legal service for the poor and she's worked to soften the impact of legal proceedings on children of divorcing parents. On May 9, 2001, 2001 -- President Bush nominated Priscilla Owen to the Fifth Circuit Court of Appeals. To this day, more than four years later, even though a majority of senators in this body support her, she's been denied an up or down vote. That's just plain wrong, and it's unfair. Priscilla Owen deserves a vote.

Now let me tell you about Janice Rogers Brown. She's the daughter of an Alabama sharecropper. She was educated in segregated schools and worked her way through college and law school. She went on to serve in prominent positions in California state government. Today, Janice Rogers Brown is a justice on the California Supreme Court and she was retained as a justice by the people of California with 76 percent of the vote.

On July 25, 2003 President Bush nominated Justice Brown to the U.S. Court of Appeals. To this day, nearly two years later, even though majority of senators support her, she's been denied an up or down vote on the floor of the Senate. That's wrong. That's unfair. Janice Rogers Brown deserves a vote.

Janice Rogers Brown can get 76 percent of the vote in California, Priscilla Owen can get 84 percent of the vote in Texas, but neither can get a vote here on the floor of the United States Senate. Why? The minority says they're out of the mainstream. Mr. President, are 76 percent of Californians and 84 percent of Texans out of the mainstream? Denying Janice Rogers Brown and Priscilla Owen a vote is what's out of the mainstream. Justice Brown and Justice Owen deserve better. They deserve to be treated fairly. They deserve the courtesy of a vote.

The consequences of this debate are not lost on any member of this body. Soon, we, 100 United States senators will decide the question at hand. Should we allow a minority of senators to deny votes on judicial nominees that have the support of a majority of this body? Or should we restore the 214-year practice of voting up or down on all judicial nominees that come to this floor? I have to believe the Senate will make the right choice.

We will choose the Constitution over obstruction. We will choose principle over politics. We will choose votes over vacillation. And when we do, the Senate will be the better for it. The Senate will be, as Daniel Webster once described it, "A body to which the country looks, with confidence, for wise, moderate, pate patriotic and healing counsels."

To realize this vision, we don't need to look as far back as the age of Webster or Clay or Calhoun. All we must do is look at the recent past and take inspiration from the era of Baker or Byrd and Dole. For 70 percent of the 20-century, the same party controlled the White House, and the United States Senate. Yet during that period, no minority ever denied a judicial nominee with majority support an up or down vote on this floor.

Howard Baker's Republican minority didn't deny Democrat Jimmy Carter's nominees. Robert Byrd's Democratic minority did not deny Republican Ronald Reagan's nominees. Bob Dole's minority did not deny Democrat Bill Clinton's nominees. These minorities showed strength. They respected the appointments process. They practiced the fine but fragile art of political civility. Sure, they disagreed with the majority at times but they nonetheless allowed up or down votes to occur.

The Senate must do what's right. We must do what's fair. We must do the job we were elected to do and took an oath to do. We must give judicial nominees the up or down votes they deserve. So let us debate and let senators be heard. Let the Senate decide and let this body rise on principle and do its duty and vote.

SEN. CHARLES SCHUMER (D), NEW YORK: Mr. President, would my colleague from Tennessee yield for a question?

FRIST: Mr. President, I'd be happy too. SCHUMER: Thank you, Mr. President. When I came on the floor, my colleague was talking about 214-years of tradition of no filibusters. Isn't it correct on March 8 of 2000, my friend from Tennessee voted to uphold a filibuster of Judge Richard -- of Richard Piaz?

FRIST: Mr. President, the -- in response, the Piaz nomination, we'll come back and discuss it further. And actually, I'd like to come back to the floor and discuss it. And it really brings to, I believe, a point what is the issue. And the issue is that we have leadership-led partisan filibusters that have obstructed not one nominee but two, three, four, five, six, seven, eight, nine, 10, in a routine way.

The issue is not cloture votes per se. It's the partisan-led use of cloture vote to kill, to defeat, to assassinate these nominees. And that's the difference. Cloture has been used in the past on this floor to postpone, to get more information, to ask further questions. But in each and every time, the nominee including Piaz gotten a up or down vote on the United States Senate, where all 100 senators could vote yes or no, confirm or reject. And Piaz got an up or down vote. That's all that we ask on the floor; that Priscilla Owen, that Justice Brown get a simple vote to approve, confirm, reject.

Mr. President, I yield the floor.

UNIDENTIFIED MALE: The Democratic leader is recognized.

REID: Mr. President, the majority leader said that during the Dole years that the Clinton nominees were treated fairly. Sixty-nine Clinton nominees didn't even -- they weren't even given the decency of a hearing. They never -- they never saw the light of day. We have participated in hearings. The matters have come to the floor. For my friend to say that Clinton was treated fairly under the Dole proposition years was simply untrue.

And I would say every one should know that Priscilla Owen, Janice Rogers Brown have had votes right here on the Senate floor, in compliance with the rules of the United States Senate. They've had votes. You know, it says if we're retreating 50, 60 years, where you keep telling these falsehoods enough, people start believing them. The American people aren't believing this. These two women, about which my friend speaks, have had votes.

My friend from Massachusetts asked a question. The president's lawyer, Alberta Gonzales, and now the attorney general of the United States, and previously a member of the Texas Supreme Court said on multiple occasions that Priscilla Owen, "activism was unconscionable. Alberto Gonzales is a smart man. He knows what the word "unconscionable" means. But in case someone doesn't, let me read what it does mean. "Unconscionable. Shockingly unjust and unscrupulous.

Now, Mr. President that is what the attorney general of the United States of America says about Priscilla Owen. Mainstream? I think not. Now, Mr. President, shockingly unjust or unscrupulous. That's what Priscilla Owen is in the minds of the attorney general of the United States. I would ask to consent my time, Mr. President -- I have your attention. I would ask that my time be charged against the Democrats' time when we take that approximately an hour from now.

UNIDENTIFIED MALE: Without objection.

REID: Mr. President, so there will be a lot more said about Janice Rogers Brown. But I think a fairly good indication of the kind of judge she is should come from the attorney general of the United States, who says that her "unconscionable activism" is replete through her opinions. I assume that he knows what it means. I'm confident he does. He's a brilliant man.

"Shockingly unjust." "Unscrupulous," those are not the words of the Senate ethics-the Senate Judiciary Committee. Not some special interest group, but those are the words of the attorney general of the United States about Priscilla Owen. And she's had a vote here in the Senate floor.

Janice Rogers Brown, I'm sure she has -- she's come from nothing to something. I think that's good. That's the way America should be. But before any starts crowing about the vote in California, she didn't have an opponent. It's a Missouri system. She had no opponent. . Now, her opinions if they weren't on such serious matters, they would be laughable, seriously laughable.

The California Supreme Court is made up of -- I don't know the breakdown, there's one Democrat on the -- I don't know. I think they have nine Supreme Court judges, seven Supreme Court justices. Six of them are Republicans. She has dissented in the last six years alone 31 different times. Among other things, she has said Supreme Court decisions upholding New Deal protections, like minimum wage, and the 40 hour work week are, in her words, "the triumph of our own socialist revolution."

Tell someone working at General Motors. Tell someone work at Titanium Metals in Henderson, Nevada that the 40-hour week is part of the socialist revolution. Tell somebody working on nights and weekends and holidays, that they can't get time and a half. Or tell somebody working at McDonald's or in a plastics factory in Fallon, Nevada, they aren't entitled to minimum wage. That's Janice Rogers Brown, who has had a vote on the Senate floor.

Yesterday, I spoke here about a statement the majority leader had made, calling the filibuster "a procedural gimmick." Again, going to the dictionary, it defines "gimmick" as I quote, "an ingenious new scheme or angle." The filibuster is not a scheme and it certainly isn't new. The filibuster is far from a procedural gimmick. It's part of the fabric of this institution we call the Senate. It was well known in colonial legislatures before we became a country and it's an integral part of our country's 214-year history.

The first filibuster in the United States Congress happened in 1790. Was used by lawmakers from Virginia and South Carolina who were trying to prevent Philadelphia from hosting the first Congress. Since then, the filibuster has been employed hundreds and hundreds, and hundreds of times. It's been employed on legislative matters. It's been employed on procedural matters relating to the president's nominations for cabinet and sub-cabinet posts. And it's been used on judges for all those years.

One scholar estimates that 20 percent of judges nominated by presidents have fallen by the wayside, most of them as a result of filibusters. Senators have used the filibuster to stand up to popular presidents, to block legislation. Yes, even as I've stated, to stall executive nominees. The roots of the filibuster are found in the Constitution, and in our own rules. In establishing each House of Congress, Article I, Section 5, the Constitution states each House may determine its rules.

In crafting the rules of the Senate, senators establish the right to extend a debate. And they formalized it with Rule 22 more than 100 years ago, or I should say about 100 years ago. This rule codified the practice that senators could debate extensively. Under Rule 22, debate may be cut off under limited circumstances. Sixty-seven votes and a filibuster demotion -- of a motion to amend a Senate rule. That is what is being attempted here.

But no, we are not going to follow the Senate rules. No, because of the arrogance of power of this Republican administration, who control the Supreme Court, the House and the Senate. It's not enough that they've come to the people's body and say let's take our chances with a fair ball game. They're going to change the rules in the middle of a ball game.

They talk about people having votes. These nominees, all 10 of them have had votes. And it's really unfair for the majority to continually to say it's 10. Three of them either retired or withdrew. And we've agreed for votes on two others. It's five. Five people who are not in the mainstream, not in the mainstream. Janice Rogers Brown accuses senior citizens of blithely cannibalizing their grandchildren. That's in the mainstream? Priscilla Owen in the mainstream?

This administers is unwilling to play by the rules. It takes to change a Senate rule when there's a filibuster in progress, 67 votes. But we're going to have Cheney, the vice president come here where the presiding officer is sitting now and say it only takes 51. This great paramour -- that's the wrong word. Paragon of virtue is going to say that it only takes a simple majority. Sixty votes may end a rule. We need 60 votes to end a filibuster against the legislative business.

And we know, we've read, it doesn't take a legal scholar. We've read newspapers this is a slippery slope. Once you have a rule changed illegally, you can do it again. There's a precedent on the books. And in the future it will be changed if we decide we don't like Bolton, the man who's chasing people down the hall throwing papers at them to be our representative of the United Nations. If we decide we don't want to filibuster him, oh we'll change the rules. He's the president's man, he's entitled to the simple majority here. We can't do this.

Or it may be an issue of perhaps to the president or majority legislative matter. Just change the rule. The precedent will have been set. Simple majority is all that's necessary.

A conversation between Thomas Jefferson and George Washington -- I believe Mr. president, describes the United States Senate and our Founding Fathers vision of this body we're so fortunate to serve in. Jefferson asked Washington, "What is the purpose of the Senate?" Washington responded, with a question of his own. "Why did you pour that coffee into your saucer?" "To cool it," Jefferson replied. To which Washington said, "Even so, we pour legislation in the senatorial saucer to cool it."

And this is exactly what the filibuster does. It encourages moderation and consensus. It gives voice the minority so cooler heads may prevail. It also separates us from the House of Representatives. Where there the majority rules through the speaker appointing the rules committee. And it's very much in keeping with the spirit of the government established by the framers of our Constitution, with separation of powers, checks and balances.

The filibuster is a critical tool of keeping a majority in check. And the presiding officer, who is a new member of the Senate, someday will be in the minority. That's the way it works. This central fact has been acknowledged and even been praised by Senators of both parties; that the filibuster is a critical tool in keeping the majority in check. In fact, another freshman senator, my colleague from Georgia, Senator Isakson recently shared a conversation he had with an Iraqi official -- government official.

Senator Isakson had asked this official if he was worried about the majority in Iraq over running the minority. The official replied no, we have the secret weapon called the filibuster. In recalling the conversation, Senator Isakson remarked, if there ever were reason for optimism, it is one of the Iraq minority leaders proudly stating one of the pillars and principles of our government, that this Iraqi government, as a way they would ensure that the majority never overran the minority. They were comparing what they were going to experience in Iraq to what we now have. The filibuster. And of course, he was right.

I spoke here yesterday about Senator Hope and his 1939 filibuster to correct workers' wages an hours. There are recent examples of the filibuster achieving good. Nineteen-eighty-five, senators from rural states, even though there were few of them, used the filibuster to force Congress to address major crisis, in which thousands of farmers were on the brink of bankruptcy. In 1995, 10 years later, the filibuster was used by senators to protect the rights of workers to a fair wage and safe workplace.

Now, Mr. President, I can't stand here and say that filibuster has always been used for positive purposes. It hasn't. Just as it has been used to bring about social change, it was also been used to stall progress this country needed to make. It is often shown that filibuster was used against civil rights legislation. But civil rights legislation passed. Civil rights advocates met the burden. And it's noteworthy today, as I speak, the Congressional Black Caucus is opposed to the nuclear option. Unanimously opposed to it.

For further analysis, let's look at Robert Carroll's book. A noted a historian, Pulitzer Prize winner -- well, let's not look at his book. Let's look at what he said at a meeting I attended with other senators. He spoke about the history of the filibuster. He made a point about its legacy that was important. He noted THAT when legislation supported by a majority of Americans it eventually overcomes a filibuster's delay, as public protests far outweigh any senator's appetite for filibuster.

But when legislation only has the support of the minority, the filibuster slows the legislation, prevents a senator from ramming it through, and gives the American people enough time to join the opposition. Mr. President, the right to extended debate is never more important then when one party control Congress and the White House. In these cases, the filibuster serves as a check on power and preserves limited government. Right now, the only check on President Bush is the Democrats ability to voice their concerns in this body of the Senate...

KAGAN: We've been listening in to the U.S. Senate, as the showdown takes place over judicial nominees. Right now at the mike is the Senate minority leader Harry Reid. We also heard from Senate majority leader, Senator Frist of Tennessee.

Our Joe Johns listening in as this unfolds on Capitol Hill. Let's bring him in -- Joe.

JOHNS: Hi, Daryn. Well, as you know, this is beginning of the debate over Priscilla Owen of Texas. She is in some ways, a handpicked nominee by the White House. A person who had a campaign, in fact, run by Karl Rove. She also has really been trying to get confirmed. Four years, she was first nominated by the president four years ago, re-nominated this time around.

The bottom line, as you know, is the issue of the filibuster and whether it ought to be used to stop judicial nominees. Democrats say a filibuster ought to be in order on people they oppose, like Janice Rogers Brown. Which would mean, of course, 60 votes rather than the simple majority of 51 votes. This is a fight that's just beginning now on the Senate floor. We do expect, of course, it could go into Tuesday or Wednesday of next week, before there is a test vote on getting rid of judicial filibusters. That of course, is what is being referred to as the "nuclear option" because it could disrupt the operations of the Senate -- Daryn.

KAGAN: All right. Joe, we're going to be back to you many times during the next couple of hours.

Also back to the floor of the U.S. Senate. We're going to do that. And look at other news of the day. Right now, a quick break.

(COMMERCIAL BREAK)

KAGAN: Let's get back to the story unfolding on the floor of the Senate right now and the situation over judicial nominees. A little background for you. Democrats blocked 10 of President Bush's first term appeal court nominees -- appeals court nominees. The president has now re-nominated seven of those judges. Two high on the president's list are Priscilla Owen, who could be next week's filibuster case, and Janis Roger Brown from California. Our political analyst Carlos Watson joins us from Los Angeles with more on this looming showdown. I think we can take looming out of there. We are at showdown status.

Carlos, good morning.

CARLOS WATSON, CNN POLITICAL ANALYST: Good morning. Yes, we're finally here. It's been a long time coming. A lot of conservative activists have frankly been frustrated over the last several months, having felt that Senator Bill Frist, the majority leader from Tennessee, should have moved forward on this more quickly. Now we are here. The debate has begun. Although the real drama may not emerge until next week.

KAGAN: And that's because the vote -- when that first vote would actually come as a test.

WATSON: That's what people think. But Daryn, one of the interesting things about this story, one of the important things is that there could be a number of surprises. At least three potential surprises stand out for me. One is there could actually be a deal. As we speak, there are a number of centrist senators, Democrats who are meeting and discussing ways around this. May be a possible deal, so I wouldn't rule that out.

No. 2, don't forgot that there could be some sort of scandal that emerges to reshape the conversation. As you recall, in the late '90s, when Newt Gingrich stepped down as speaker, there was an unpredictable series of events that included another speaker, Bob Livingston getting enveloped in scandal and stepping down. So don't forget that that could happen.

And then last but not least, there may be other significant events. Particularly international events that may ultimately reshape this conversation or at least put it on the blocks for a little while.

KAGAN: If you want to involve scandal in Washington D.C., that usually is a pretty good bet that something could pop up on that.

Let's look forward, Carlos. How much is this debate and this controversy, and conflict about these particular judges, and how much looking forward over the potential Supreme Court nomination?

WATSON: Very much as you suspect over potential Supreme Court nomination. Because the reality is that 94 of the 162 currently active federal appeals court judges are Republicans. Republicans control 10 of the 13 circuit courts. And if all the president's contested nominees were ultimately approved, only one of the remaining three Democratic controlled circuit courts would actually shift.

So this isn't a big deal in terms of Republican judges being in place. It's a bigger deal, as you suggest, that given people expect there will be an opening on the Supreme Court perhaps this summer if Supreme Court Chief Justice Bill Rehnquist actually steps down.

KAGAN: I want to go ahead and ask you about California politics since we find you in Los Angeles this morning. The City of Angels has a new mayor this time.

WATSON: New mayor the first time since 1872. Hispanic mayor here in the City of Angels, Antonio Villaraigosa. What I think is very interesting about him is not only did he beat an incumbent L.A. mayor for the first time in 50 years, but he has got a very different background, Daryn. And he might be a paradigm changing kind of candidate.

He is not an Ivy Leagued-degree-educated-lawyer, instead -- or the son of famous a politician as the incumbent was. Instead, he was a union organizer for many years. And by his own accounts, grew up in east L.A, fairly difficult circumstances. And since his emergence on the scene some 10 or 12 years ago, you have seen a number of Latino particularly young Latino politicians use unionizing as a springboard into elected office.

KAGAN: Very interesting. Very good. Carlos Watson in Los Angeles this morning. Carlos, thank you.

WATSON: Always good to see you.

KAGAN: Another story for you from Congress. This one extends beyond politics to a story of personal tragedy. Just about 90 minutes ago, we heard from Joan Humphrey Lefkow. You might remember her. She was a federal judge whose husband and mother were killed in her Chicago home. The killer, later committed suicide, was an angry litigant who had earlier appeared before the judge.

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Aired May 18, 2005 - 09:30   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
CAROL COSTELLO, CNN ANCHOR: In California, Michael Jackson's teenaged cousin returns to the witness stand today, pointing fingers at Jackson's accuser. The girl says she saw the accuser and his younger brother steal wine from the kitchen at the Neverland Ranch. Jurors also heard from a social worker who claimed she met with the accuser and his family at the same time they claim they were held captive at Jackson's ranch.
And Los Angeles has its first has Hispanic mayor in more than a century. That's right. That election is finally over. Leading in the ballots, Antonio Villaraigosa claimed victory over incumbent James Hahn. Four years ago, Hahn beat Villaraigosa in a close race. Villaraigosa thanked his supporters for his win and he promised to bring the city together and he said, and I quote, "I really love Los Angeles today."

BILL HEMMER, CNN ANCHOR: Not bad.

SOLEDAD O'BRIEN, CNN ANCHOR: Now that I won this time around, I really, really like the people of Los Angeles. Carol, thanks.

COSTELLO: Sure.

O'BRIEN: Some big stories to talk about on Capitol Hill today. The commissioners of the major sports leagues are testifying about steroids. Also this morning, a security hearing where a federal judge is talking for the first time about the murders of her husband and her mother. Also, the showdown over President Bush's judicial nominees and, in fact, that's where we begin this morning.

Joe Johns, at the Capitol for us. Hey, Joe, good morning.

JOE JOHNS, CNN CONGRESSIONAL CORRESPONDENT: Good morning, Soledad. The negotiating continues to try to reach a deal here, but the stage is now set as judicial nominations head to the floor of the United States Senate today.

(BEGIN VIDEOTAPE)

JOHNS (voice-over): The showdown over judges begins today. Up first, Texas Supreme Court Justice Priscilla Owen, whose nomination to the federal bench has been stalled for four years. Tuesday, Republicans launched a media blitz for Owen, and California Supreme Court Justice Janice Rogers Brown. They visited Capitol Hill, and earlier, the White House, where they met with President Bush himself.

SCOTT MCCLELLAN, WHITE HOUSE PRESS SECY.: The role of the Senate is to provide their advice and consent. It's not to provide advice and block.

JOHNS: Senate Majority Leader Bill Frist and Senate Democratic Leader Harry Reid dug in further, Frist arguing that judges need a straight up or down vote.

SEN. BILL FRIST (R), MAJORITY LEADER: Are they really out of the mainstream, or is this really just politics? The best way to decide is to take it to the floor of the United States Senate and let 100 United States senators decide.

JOHNS: Reid insisted Democrats have the right to block judges they oppose, and accused Republicans of trying to break filibusters in a power grab. Reid, a former boxer, says Democrats are ready.

SEN. HARRY REID (D), MINORITY LEADER: We've done everything that we could. We've trained hard. The fight is about to begin.

JOHNS: The basic issue, Republicans want a simple majority vote on judges. But with a possible Supreme Court nomination looming, Democrats won't give up their right to demand 60 votes before controversial nominations can go forward. So Republicans have vowed to change Senate rules and ban judicial filibusters.

Perhaps the best prospect for a deal lies with Senators John McCain and Ben Nelson, a Republican and a Democrat trying to find a way out of the impasse. But those talks seem to be moving very slowly, while the rush toward confrontation appears to be accelerating.

SEN. JOHN MCCAIN (R), ARIZONA: We're just continuing to work right up until the last minute, trying to avert what could have severe repercussions, obviously, for our ability to conduct business for some period of time.

(END VIDEOTAPE)

JOHNS: Now, there does appear to be enough time to still reach a deal. That, in part, because of the possibility of a test vote not coming until Tuesday or Wednesday of next week. The number of senators concerned about this appears to be growing. Senator Bob Bennett of Utah, we're told, has proposed a meeting of the entire Senate on the old Senate floor -- that's the chamber that's closed to cameras -- sometime today, trying to find out if the leaders are interested in getting everybody in the Senate together to talk about this thing today.

Soledad, back to you.

O'BRIEN: Joe Johns for us this morning. Thanks, Joe. Let's take you right back to the Senate floor, in fact. We got the majority leader, Bill Frist, is talking about procedures. We're going to dip in and listen to a little bit.

(JOINED IN PROGRESS)

SEN. BILL FRIST, (R) MAJORITY LEADER: ... under the control of the Democratic leader, and the time from 7:15 to 7:45, under the control of the majority leader or his designation.

SEN. HARRY REID, (D) MINORITY LEADER: Reserving the right to object. Mr. President, first of all, I would ask the distinguished majority leader to amend his (INAUDIBLE) request to have the time begin when we complete our statements today. It might not be right at the quarter to the hour, but whenever that would be, we would rotate on an hourly basis.

UNIDENTIFIED MALE: Mr. President, without objection.

UNIDENTIFIED MALE: Is there objection? A modified request? If not.

REID: OK. Yes, Mr. President, I have another reservation.

UNIDENTIFIED MALE: The Democratic leader.

REID: Mr. President, I would ask the distinguished majority leader, would we not be better off moving to get rid of -- or I don't mean that in a pejorative sense, but clear the calendar of four, at this stage, noncontroversial judges? We could move to Thomas Griffith, who's on the calendar. We could move to discharge and consider the Michigan court circuit nominees, Griffin (ph), McKee (ph) and Nielson. We'd get time agreements on all those. We'd have four circuit judges. They would be able to go to work within a few days, actually go to work.

Otherwise, they're going to be waiting until we go through all this and it would seem to me that that would be the best thing to do. So I would ask the distinguished majority leader if he would agree that we can move to these with reasonable time agreements, prior to moving to Priscilla Owen.

FRIST: Mr. President...

UNIDENTIFIED MALE: Majority leader...

FRIST: Through the chair, we have we have given careful consideration of which would be most appropriate person to begin with and it is Priscilla Owen, so we'll proceed with Priscilla Owen. I believe there are five people on the executive calendar and our intention would be to debate these nominees, one by one, and hopefully, as other nominees come out of the judiciary committee, take them up as well. So we will be proceeding with Priscilla Owen.

REID: Mr. President, one further statement.

UNIDENTIFIED MALE: Minority -- Democratic leader.

REID: In that we've started this process, my friend, the distinguished majority leader, should be advised that we will not agree to committees meeting during the time that we're doing the debate on Priscilla Owen.

UNIDENTIFIED MALE: Is there objection to the request as modified? SEN. TED KENNEDY, (D) MASSACHUSETTS: Reserving the right to object...

UNIDENTIFIED MALE: Senator from Massachusetts.

KENNEDY: I was wondering if the -- our leader is familiar with the letter, which our -- members of our judiciary committee sent to our chairman of our committee that points out that there are now some 30 vacancies on the federal bench, for which the president has not yet sent a nominee to the Senate. And if he would work with the senators of both parties to identify, quality consensus nominees for each of these spots, the vacancy numbers on our courts could be lowered even further.

However, an much as we have offered to work with him, finding these nominees and getting them confirmed, there's been absolutely no response. And I just am wondering whether as we're addressing the issues of one nominee, whether -- and the issue that's before the Senate is filling vacancies on the courts, I'm just -- was interested if the majority leader could -- has any information from the administration when we're going to be able to fill these other nominations, nominees?

FRIST: Mr. President, I'd be happy to look at the letter and request of the administration, what requests are made in the letter and see what the response would be. In the meantime, Mr. President, what I'd like to do is proceed with Priscilla Owen, who is a qualified nominee, who is a nominee that we're going to have a lot of debate on back and forth to determine whether or not she is out of the mainstream, as people say.

And we'll go through regular order and take these nominees that the president has submitted to the judiciary committee that have been fully evaluated in the judiciary committee and who now are on the executive calendar, ready for business, and so we're gonna begin that debate here shortly.

KENNEDY: Reserving my rights further, Mr. President. As I understand, there is a new nominee that is on the Senate calendar, Brian Sanibel (ph), Nevada, that has the general broad support, but that he is not the nominee that we could fill in a matter of moments here, and at least take care of that vacancy.

FRIST: I will -- I don't believe that he is on the executive calendar. He may -- to the best of my knowledge, at least he's not on the executive calendar that's printed today.

KENNEDY: The...

UNIDENTIFIED MALE: ... object. And I should not, but I would also remind everybody that the distinguished Democratic leader has said they have no objection to going towards -- this is a Court of Appeals judge. Thomas Griffith of Utah, the United States circuit judge for the District of Columbia circuit. While Mr. Griffith is one I would vote against for reasons I've already stated, for the nose count I have, he would easily be confirmed. And I would also note that I have total agreement with the distinguished senior senator from Nevada, who has said we'd be willing to do this on a relatively short time. I just mentioned that so that I would not anybody to feel this is a person being held up, even though some of us object to him.

O'BRIEN: You've been listening to the opening debate on judicial nominees that's taking place on the floor of the Senate. And just moments ago, we heard a little bit of back and forth between Senator Reid and the majority leader, Bill Frist. Of course what's at issue here is the bigger issue of the filibuster. There's been negotiations going on behind the scene, trying to negotiate some sort of compromise, or go to the nuclear option, which would at the end of the day blow up the filibuster for nominees. There would be no opportunity to do that.

However, what you're hearing now is some of the senators coming forward, talking about some of the nominees who might more quickly be confirmed or move forward than who they have decided to go with, which is Priscilla Owen. She is a judge who is considered fairly controversial by Democrats, qualified by Republicans, some Republicans. We heard that back and forth just a moment ago.

Let's get right back to Joe Johns who can explain a little bit of what we are hearing. We've heard, Joe, a couple other names brought forward, as names of candidates who should be considered before Priscilla Owen.

Is this to underscore on the Democrats' part that they're willing to move forward and fill some of these vacancies? They've gotten some of the blame for those vacancies in recent days and weeks.

JOHNS: That's just about right, Soledad. The Democrats have been saying for sometime that they'd like to move forward with what they can consensus nominees, nominees who should be able to clear the United States Senate fairly easily, before moving to those more controversial nominees, who could lead to the invocation of the nuclear option, if you will. And that, of course, a battle over whether Democrats should have the right to continue to filibuster, or demand 60 votes on Senate floor, for any of these nominees to get through.

So Democrats are trying to push their continuing position that we ought to work on the judges who are people who can get through, before we talk about these more contentious judges. Of course senator...

O'BRIEN: Before we talk further, Joe, about the more contentious judges, let's listen to Harry Reid again, and he's going back and forth with Senator Frist, as you can see on the screen here. Harry Reid was talking about the nuclear option, saying that he wants to continue the behind-the-scenes meetings that we've been talking about over trying to avoid the nuclear option. Let's listen in.

(JOINED IN PROGRESS)

FRIST: ... engaged in negotiations, and attempts to satisfy both sides over the last, really, four months, five months, since these unprecedented filibusters came before this body after 214 years with a threshold of 50 votes. All of a sudden, the last Congress, it was radically changed by the other side to become 60 votes, denying the sort of people like -- a little bit like what we've just heard over the last few minutes, where I'm try to move to a qualified nominee, Priscilla Owen, and we hear these attempts to delay, even right now, and to sidetrack and consider somebody else, and that's the challenge.

That's why we're on the floor of the United States Senate, with the light of day, with the American people watching at this point, to take it to the body of the United States Senate, and ask that fundamental question, is Priscilla Owen out of the mainstream? 84 percent of Texans think she's in the mainstream, but are 84 percent of Texans out of the mainstream?

To answer to that question is no, they're not out of the mainstream. All we want is a vote, an up or down vote. Accept, reject, confirm, yes, no, that's all we're asking for. We don't want the constitutional option. We didn't ask for the constitutional option. What has happened, because of the other side of the aisle, in shattering the Senate tradition for 214 years, where filibuster was never even contemplated.

Now it's used on a routine basis. One out of every four of the president's nominees that have come over from the circuit courts are filibustered, blocked, not given that responsibility, or given that courtesy of a vote, when that's our responsibility, to give advice and consent.

So in response to my good friend the Democratic leader, yes, let's consider, as proposals come forward, we'll consider all. Both the two leaders spent 50 minutes or so as the papers reported today, talking with people who trying to come to some reasonable conclusion, and we'll continue to do that, and so I'd be happy to consider that, another idea.

I think what's important now, though, is to come to the floor of the United States Senate. Let's shed light on this. Let's take this -- yes, it's an inside-the-Senate decision, and we make our own traditions and rules. But it is important to the American people to see, is Priscilla Owen? Is Janice Rogers Brown, deserving of a vote, yes or no, on the floor of the United States Senate?

So what I would recommend, we continue discussions, but let's proceed with this nominee, continue that debate over the course of the day...

O'BRIEN: You're listening to Senator Bill Frist, and he was just tackling a proposition by -- a proposal by Harry Reid, to continue a discussion behind the scenes about coming to some conclusion over the filibuster before going to a vote on Priscilla Owen. We're going to bring Joe Johns back in again.

And, Joe, we're going to continue to monitor this while you and I chat. You know, for all the "my good friend" and the "distinguished colleague from," there's actually a fair amount of animosity here. In fact, you know, hang on, Joe, we're going to go back to Senator Reid for a second, hear how he is responding to Senator Frist.

(JOINED IN PROGRESS)

REID: ... breaking rules to change rules. That's improper. It will change the Senate forever. That's not good.

UNIDENTIFIED MALE; Is there objection?

KENNEDY: Reserving the right, further right to object. I just want to support what our leader, our Democratic leader. I believe that the record now is that we have approved 96 percent of the judicial nominees of this administration. And as we know, in terms of the -- what our -- reading the constitutional convention that our founding fathers expected that this was going to be -- we were going to exercise our own independent best judgment on nominees.

And if I could ask the majority leader, is this the same Priscilla Owen which our current attorney general suggested unconscionable acts of judicial activism? That is our current attorney general has accused this nominee of that kind of activity. Is this the same Priscilla Owen that is now being recommended, which our current attorney general had made that comment, not once, not twice, not three times, but 11 times?

Mr. President?

UNIDENTIFIED MALE: The regular order has been called for. The senator must either object or permit the request to move forward. Is there objection? Without objection, so ordered...

KENNEDY: Reserving the right for objection, I think I'm entitled...

UNIDENTIFIED MALE; The senator cannot reserve the right to object. You must object or grant the request. Is there objection? Without objection, so ordered. Clerk will report the nominee.

UNIDENTIFIED MALE: Nomination, the judiciary. Priscilla Richmond Owen of Texas to be United States circuit judge.

O'BRIEN: OK, so you heard it right there, Priscilla Owen, in spite of what we heard from Ted Kennedy, Senator Ted Kennedy talking about what the current attorney general has said about her, now moves forward, being considered as a nominee. The debate will begin now on this, on this candidate.

Joe Johns, again, is standing by for us, to talk a little bit more about that. Joe, kind of an interesting moment that we were able to catch that back and forth. Because of course they covered many issues, only very much at the end getting to Priscilla Owen.

Senator Frist, I'm told, responding now to what's being said. Let's go right back to him. Joe, stand by.

(JOINED IN PROGRESS)

FRIST: ... debate the nominee for five hours. Debate the nominee for 50 hours. Vote for the nominee. Vote against the nominee. Confirm the nominee. Reject the nominee. But in the end, vote.

Senators, colleagues, let's do our duty and vote. Judicial nominees deserve an up or down vote.

In this debate, we'll discuss two of the president's judicial nominees. These outstanding nominees, Priscilla Owen and Janice Rogers Brown, both had the support of a majority of senators in the last Congress. But they were denied. They were denied up or down votes. I expect we'll also discuss such consequential topics as the meaning of the Constitution and Senate rules and procedures. No doubt, this will be a spirited debate, as it should be. And I also hope it will be a decisive debate.

So let us begin. In the last Congress, for the first time in history, a minority of senators obstructed the principle of a fair up or down vote on judicial nominees. That was unprecedented. Never in 214 years of Senate history had a judicial nominee with the majority support been denied an up or down vote, yet it happened, again, and again, and again, and again, and again and again.

A minority of senators denied an up or down vote, not just once to one nominee, but 18 times on 10 individual nominees. These men and women, these nominees, are among the best legal minds in America and they all would be serving on the federal bench today. All they needed was a vote. But they weren't given the courtesy of an up or down vote on the floor of the United States Senate.

The minority denied them a vote and set a new precedent. The minority in the last Congress rewrote the rule of advice and consent. They unilaterally increased the threshold for confirmation from 50 votes, where it had been throughout history, to 60 votes. Now, some in the minority say they'll harden the precedent and obstruct judicial nominees that come forth in this Congress. And if they aren't allowed to do so, if the Senate returns to the way it worked for 214 years, they will retaliate.

They will obstruct the Senate's other business. They will obstruct the people's business. They will hold back our agenda to move America forward in energy strategy to reduce our dependence on foreign oil, held back an end to the medical lawsuit abuse to reduce the cost of healthcare, held back a simpler, fairer tax code to create jobs and to encourage economic growth, held back.

A minority of senators will hold America back just because a majority of senators, a majority of people in this body, want to do what most Americans, of all things, expect us to do. And that is to vote. The minority should allow senators to fulfill our constitutional responsibility of giving advice and consent and vote. And they should allow America to move forward.

Mr. President, the principals that endure for 214 years do not endure because they appeal to one party or the other. They endure because they serve a vital purpose. In this case, the principle of an up or down vote ensure the president can fulfill his constitutional duty to appoint judges.

Let me read a passage in the Constitution. "The president shall have power by and with the advice and consent of the Senate to make treaties, provided two-third of the senators present concur. And he shall nominate and by and with the advice and consent of the Senate, shall appoint ambassadors and other public ministers and counsels, judges of the Supreme Court and all other officers of the United States Senate."

The framers wrote in the Constitution that two-third of senators must approve treaties, but they specifically did not require the same number of votes to confirm judicial nominees. After much debate and compromise, the framers concluded that the president should have the power to appoint and the Senate should confirm or reject nominees by a simple majority vote. For 214 years, Republican and Democratic minorities alike restrained themselves. They used restraint. They abided by the framer's design and Senate tradition and gave nominees brought to this floor simple majority up or down votes. That was the practice.

Then came the last Congress. With its obstruction, the minority set a new precedent. 60 votes before the Senate could proceed to an up or down vote on a judicial nominee. For 214 years, the threshold for advice and consent in the Senate was 50 votes, a majority. In the last Congress...

UNIDENTIFIED MALE: Would my colleague yield for a question?

FRIST: Mr. President, I would like to proceed with my statement and then would be happy to yield...

UNIDENTIFIED MALE: Majority leader has the floor.

FRIST: For 214 years, the threshold for advice and consent in the Senate was 50 votes. In the last Congress, the minority party radically increased that threshold to 60. And that is wrong, and we will restore the tradition. This unprecedented threshold gave the minority a virtual veto and effective control over the judicial appointments of the president.

The minority destroyed 214 years of Senate tradition, defied the clear intent of the constitution and undermined the Democratic will of the American people. You can't get much more radical than that. This new precedent cannot be allowed to stand in this Congress. We must restore the 214-year-old principle that every judicial nominee with majority support deserves an up or down vote.

Why? First, the American people elect their senators for a reason -- is to represent them. And they expect us to do our job. The Senate is a deliberative body. We are a proudly deliberative body. But we also have certain responsibilities, which include giving advice and consent on the president's judicial nominations. When a judicial nominee comes to this floor and has majority support, but is denied a simple up or down vote, senators are simply not doing their job. And the sad fact is, we didn't do our job in the last Congress. The minority's judicial obstruction has saddled President Bush with the lowest confirmation rate for appeals court nominees of any modern president. This is disgraceful. We owe it to the people we serve and to the Senate as an institution to do our job. We should vote up or down on judicial nominees.

Second, the judicial branch also has a job to do and it needs judges to do it. Right now, there are 46 vacancies on the federal bench. That includes 17 vacancies on appeals courts. But it's not just the vacancies themselves. Qualified nominees who can fill those seats can't get up or down votes to be confirmed in the Senate.

Let me give you an example. Four of the 17 vacancies on federal appeals courts are in the region than serves my home state of Tennessee. Four of the 17 vacancies. Those nominees have been waiting a combined 13 years for a simple up or down vote on this floor. 13 years they have been waiting.

Either confirm these nominees or reject the nominees, but don't leave them hanging. Don't leave our courts hanging. Don't leave the country hanging. If the nominees are rejected, fine, that's fair. At least rejection represents a vote. But give nominees the courtesy, the courtesy, of a vote.

Third, judicial nominees deserve up or down votes because they deserve to be treated fairly. Let me tell you about the nominees we're about to consider, Priscilla Owen and Janice Rogers Brown. Priscilla Owen has been a Texas Supreme Court justice for the last ten years. She was re-elected with 84 percent of the vote in 2000. Her service won praise from members of both parties. Former Justice Raul Gonzalez, a Democrat, said, "I found her to be apolitical, extremely bright, diligent in her work, and of the highest integrity. I recommend her for confirmation without reservation"

Justice Owen has also been a leader for providing free legal service for the poor and she's worked to soften the impact of legal proceedings on children of divorcing parents. On May 9, 2001, 2001 -- President Bush nominated Priscilla Owen to the Fifth Circuit Court of Appeals. To this day, more than four years later, even though a majority of senators in this body support her, she's been denied an up or down vote. That's just plain wrong, and it's unfair. Priscilla Owen deserves a vote.

Now let me tell you about Janice Rogers Brown. She's the daughter of an Alabama sharecropper. She was educated in segregated schools and worked her way through college and law school. She went on to serve in prominent positions in California state government. Today, Janice Rogers Brown is a justice on the California Supreme Court and she was retained as a justice by the people of California with 76 percent of the vote.

On July 25, 2003 President Bush nominated Justice Brown to the U.S. Court of Appeals. To this day, nearly two years later, even though majority of senators support her, she's been denied an up or down vote on the floor of the Senate. That's wrong. That's unfair. Janice Rogers Brown deserves a vote.

Janice Rogers Brown can get 76 percent of the vote in California, Priscilla Owen can get 84 percent of the vote in Texas, but neither can get a vote here on the floor of the United States Senate. Why? The minority says they're out of the mainstream. Mr. President, are 76 percent of Californians and 84 percent of Texans out of the mainstream? Denying Janice Rogers Brown and Priscilla Owen a vote is what's out of the mainstream. Justice Brown and Justice Owen deserve better. They deserve to be treated fairly. They deserve the courtesy of a vote.

The consequences of this debate are not lost on any member of this body. Soon, we, 100 United States senators will decide the question at hand. Should we allow a minority of senators to deny votes on judicial nominees that have the support of a majority of this body? Or should we restore the 214-year practice of voting up or down on all judicial nominees that come to this floor? I have to believe the Senate will make the right choice.

We will choose the Constitution over obstruction. We will choose principle over politics. We will choose votes over vacillation. And when we do, the Senate will be the better for it. The Senate will be, as Daniel Webster once described it, "A body to which the country looks, with confidence, for wise, moderate, pate patriotic and healing counsels."

To realize this vision, we don't need to look as far back as the age of Webster or Clay or Calhoun. All we must do is look at the recent past and take inspiration from the era of Baker or Byrd and Dole. For 70 percent of the 20-century, the same party controlled the White House, and the United States Senate. Yet during that period, no minority ever denied a judicial nominee with majority support an up or down vote on this floor.

Howard Baker's Republican minority didn't deny Democrat Jimmy Carter's nominees. Robert Byrd's Democratic minority did not deny Republican Ronald Reagan's nominees. Bob Dole's minority did not deny Democrat Bill Clinton's nominees. These minorities showed strength. They respected the appointments process. They practiced the fine but fragile art of political civility. Sure, they disagreed with the majority at times but they nonetheless allowed up or down votes to occur.

The Senate must do what's right. We must do what's fair. We must do the job we were elected to do and took an oath to do. We must give judicial nominees the up or down votes they deserve. So let us debate and let senators be heard. Let the Senate decide and let this body rise on principle and do its duty and vote.

SEN. CHARLES SCHUMER (D), NEW YORK: Mr. President, would my colleague from Tennessee yield for a question?

FRIST: Mr. President, I'd be happy too. SCHUMER: Thank you, Mr. President. When I came on the floor, my colleague was talking about 214-years of tradition of no filibusters. Isn't it correct on March 8 of 2000, my friend from Tennessee voted to uphold a filibuster of Judge Richard -- of Richard Piaz?

FRIST: Mr. President, the -- in response, the Piaz nomination, we'll come back and discuss it further. And actually, I'd like to come back to the floor and discuss it. And it really brings to, I believe, a point what is the issue. And the issue is that we have leadership-led partisan filibusters that have obstructed not one nominee but two, three, four, five, six, seven, eight, nine, 10, in a routine way.

The issue is not cloture votes per se. It's the partisan-led use of cloture vote to kill, to defeat, to assassinate these nominees. And that's the difference. Cloture has been used in the past on this floor to postpone, to get more information, to ask further questions. But in each and every time, the nominee including Piaz gotten a up or down vote on the United States Senate, where all 100 senators could vote yes or no, confirm or reject. And Piaz got an up or down vote. That's all that we ask on the floor; that Priscilla Owen, that Justice Brown get a simple vote to approve, confirm, reject.

Mr. President, I yield the floor.

UNIDENTIFIED MALE: The Democratic leader is recognized.

REID: Mr. President, the majority leader said that during the Dole years that the Clinton nominees were treated fairly. Sixty-nine Clinton nominees didn't even -- they weren't even given the decency of a hearing. They never -- they never saw the light of day. We have participated in hearings. The matters have come to the floor. For my friend to say that Clinton was treated fairly under the Dole proposition years was simply untrue.

And I would say every one should know that Priscilla Owen, Janice Rogers Brown have had votes right here on the Senate floor, in compliance with the rules of the United States Senate. They've had votes. You know, it says if we're retreating 50, 60 years, where you keep telling these falsehoods enough, people start believing them. The American people aren't believing this. These two women, about which my friend speaks, have had votes.

My friend from Massachusetts asked a question. The president's lawyer, Alberta Gonzales, and now the attorney general of the United States, and previously a member of the Texas Supreme Court said on multiple occasions that Priscilla Owen, "activism was unconscionable. Alberto Gonzales is a smart man. He knows what the word "unconscionable" means. But in case someone doesn't, let me read what it does mean. "Unconscionable. Shockingly unjust and unscrupulous.

Now, Mr. President that is what the attorney general of the United States of America says about Priscilla Owen. Mainstream? I think not. Now, Mr. President, shockingly unjust or unscrupulous. That's what Priscilla Owen is in the minds of the attorney general of the United States. I would ask to consent my time, Mr. President -- I have your attention. I would ask that my time be charged against the Democrats' time when we take that approximately an hour from now.

UNIDENTIFIED MALE: Without objection.

REID: Mr. President, so there will be a lot more said about Janice Rogers Brown. But I think a fairly good indication of the kind of judge she is should come from the attorney general of the United States, who says that her "unconscionable activism" is replete through her opinions. I assume that he knows what it means. I'm confident he does. He's a brilliant man.

"Shockingly unjust." "Unscrupulous," those are not the words of the Senate ethics-the Senate Judiciary Committee. Not some special interest group, but those are the words of the attorney general of the United States about Priscilla Owen. And she's had a vote here in the Senate floor.

Janice Rogers Brown, I'm sure she has -- she's come from nothing to something. I think that's good. That's the way America should be. But before any starts crowing about the vote in California, she didn't have an opponent. It's a Missouri system. She had no opponent. . Now, her opinions if they weren't on such serious matters, they would be laughable, seriously laughable.

The California Supreme Court is made up of -- I don't know the breakdown, there's one Democrat on the -- I don't know. I think they have nine Supreme Court judges, seven Supreme Court justices. Six of them are Republicans. She has dissented in the last six years alone 31 different times. Among other things, she has said Supreme Court decisions upholding New Deal protections, like minimum wage, and the 40 hour work week are, in her words, "the triumph of our own socialist revolution."

Tell someone working at General Motors. Tell someone work at Titanium Metals in Henderson, Nevada that the 40-hour week is part of the socialist revolution. Tell somebody working on nights and weekends and holidays, that they can't get time and a half. Or tell somebody working at McDonald's or in a plastics factory in Fallon, Nevada, they aren't entitled to minimum wage. That's Janice Rogers Brown, who has had a vote on the Senate floor.

Yesterday, I spoke here about a statement the majority leader had made, calling the filibuster "a procedural gimmick." Again, going to the dictionary, it defines "gimmick" as I quote, "an ingenious new scheme or angle." The filibuster is not a scheme and it certainly isn't new. The filibuster is far from a procedural gimmick. It's part of the fabric of this institution we call the Senate. It was well known in colonial legislatures before we became a country and it's an integral part of our country's 214-year history.

The first filibuster in the United States Congress happened in 1790. Was used by lawmakers from Virginia and South Carolina who were trying to prevent Philadelphia from hosting the first Congress. Since then, the filibuster has been employed hundreds and hundreds, and hundreds of times. It's been employed on legislative matters. It's been employed on procedural matters relating to the president's nominations for cabinet and sub-cabinet posts. And it's been used on judges for all those years.

One scholar estimates that 20 percent of judges nominated by presidents have fallen by the wayside, most of them as a result of filibusters. Senators have used the filibuster to stand up to popular presidents, to block legislation. Yes, even as I've stated, to stall executive nominees. The roots of the filibuster are found in the Constitution, and in our own rules. In establishing each House of Congress, Article I, Section 5, the Constitution states each House may determine its rules.

In crafting the rules of the Senate, senators establish the right to extend a debate. And they formalized it with Rule 22 more than 100 years ago, or I should say about 100 years ago. This rule codified the practice that senators could debate extensively. Under Rule 22, debate may be cut off under limited circumstances. Sixty-seven votes and a filibuster demotion -- of a motion to amend a Senate rule. That is what is being attempted here.

But no, we are not going to follow the Senate rules. No, because of the arrogance of power of this Republican administration, who control the Supreme Court, the House and the Senate. It's not enough that they've come to the people's body and say let's take our chances with a fair ball game. They're going to change the rules in the middle of a ball game.

They talk about people having votes. These nominees, all 10 of them have had votes. And it's really unfair for the majority to continually to say it's 10. Three of them either retired or withdrew. And we've agreed for votes on two others. It's five. Five people who are not in the mainstream, not in the mainstream. Janice Rogers Brown accuses senior citizens of blithely cannibalizing their grandchildren. That's in the mainstream? Priscilla Owen in the mainstream?

This administers is unwilling to play by the rules. It takes to change a Senate rule when there's a filibuster in progress, 67 votes. But we're going to have Cheney, the vice president come here where the presiding officer is sitting now and say it only takes 51. This great paramour -- that's the wrong word. Paragon of virtue is going to say that it only takes a simple majority. Sixty votes may end a rule. We need 60 votes to end a filibuster against the legislative business.

And we know, we've read, it doesn't take a legal scholar. We've read newspapers this is a slippery slope. Once you have a rule changed illegally, you can do it again. There's a precedent on the books. And in the future it will be changed if we decide we don't like Bolton, the man who's chasing people down the hall throwing papers at them to be our representative of the United Nations. If we decide we don't want to filibuster him, oh we'll change the rules. He's the president's man, he's entitled to the simple majority here. We can't do this.

Or it may be an issue of perhaps to the president or majority legislative matter. Just change the rule. The precedent will have been set. Simple majority is all that's necessary.

A conversation between Thomas Jefferson and George Washington -- I believe Mr. president, describes the United States Senate and our Founding Fathers vision of this body we're so fortunate to serve in. Jefferson asked Washington, "What is the purpose of the Senate?" Washington responded, with a question of his own. "Why did you pour that coffee into your saucer?" "To cool it," Jefferson replied. To which Washington said, "Even so, we pour legislation in the senatorial saucer to cool it."

And this is exactly what the filibuster does. It encourages moderation and consensus. It gives voice the minority so cooler heads may prevail. It also separates us from the House of Representatives. Where there the majority rules through the speaker appointing the rules committee. And it's very much in keeping with the spirit of the government established by the framers of our Constitution, with separation of powers, checks and balances.

The filibuster is a critical tool of keeping a majority in check. And the presiding officer, who is a new member of the Senate, someday will be in the minority. That's the way it works. This central fact has been acknowledged and even been praised by Senators of both parties; that the filibuster is a critical tool in keeping the majority in check. In fact, another freshman senator, my colleague from Georgia, Senator Isakson recently shared a conversation he had with an Iraqi official -- government official.

Senator Isakson had asked this official if he was worried about the majority in Iraq over running the minority. The official replied no, we have the secret weapon called the filibuster. In recalling the conversation, Senator Isakson remarked, if there ever were reason for optimism, it is one of the Iraq minority leaders proudly stating one of the pillars and principles of our government, that this Iraqi government, as a way they would ensure that the majority never overran the minority. They were comparing what they were going to experience in Iraq to what we now have. The filibuster. And of course, he was right.

I spoke here yesterday about Senator Hope and his 1939 filibuster to correct workers' wages an hours. There are recent examples of the filibuster achieving good. Nineteen-eighty-five, senators from rural states, even though there were few of them, used the filibuster to force Congress to address major crisis, in which thousands of farmers were on the brink of bankruptcy. In 1995, 10 years later, the filibuster was used by senators to protect the rights of workers to a fair wage and safe workplace.

Now, Mr. President, I can't stand here and say that filibuster has always been used for positive purposes. It hasn't. Just as it has been used to bring about social change, it was also been used to stall progress this country needed to make. It is often shown that filibuster was used against civil rights legislation. But civil rights legislation passed. Civil rights advocates met the burden. And it's noteworthy today, as I speak, the Congressional Black Caucus is opposed to the nuclear option. Unanimously opposed to it.

For further analysis, let's look at Robert Carroll's book. A noted a historian, Pulitzer Prize winner -- well, let's not look at his book. Let's look at what he said at a meeting I attended with other senators. He spoke about the history of the filibuster. He made a point about its legacy that was important. He noted THAT when legislation supported by a majority of Americans it eventually overcomes a filibuster's delay, as public protests far outweigh any senator's appetite for filibuster.

But when legislation only has the support of the minority, the filibuster slows the legislation, prevents a senator from ramming it through, and gives the American people enough time to join the opposition. Mr. President, the right to extended debate is never more important then when one party control Congress and the White House. In these cases, the filibuster serves as a check on power and preserves limited government. Right now, the only check on President Bush is the Democrats ability to voice their concerns in this body of the Senate...

KAGAN: We've been listening in to the U.S. Senate, as the showdown takes place over judicial nominees. Right now at the mike is the Senate minority leader Harry Reid. We also heard from Senate majority leader, Senator Frist of Tennessee.

Our Joe Johns listening in as this unfolds on Capitol Hill. Let's bring him in -- Joe.

JOHNS: Hi, Daryn. Well, as you know, this is beginning of the debate over Priscilla Owen of Texas. She is in some ways, a handpicked nominee by the White House. A person who had a campaign, in fact, run by Karl Rove. She also has really been trying to get confirmed. Four years, she was first nominated by the president four years ago, re-nominated this time around.

The bottom line, as you know, is the issue of the filibuster and whether it ought to be used to stop judicial nominees. Democrats say a filibuster ought to be in order on people they oppose, like Janice Rogers Brown. Which would mean, of course, 60 votes rather than the simple majority of 51 votes. This is a fight that's just beginning now on the Senate floor. We do expect, of course, it could go into Tuesday or Wednesday of next week, before there is a test vote on getting rid of judicial filibusters. That of course, is what is being referred to as the "nuclear option" because it could disrupt the operations of the Senate -- Daryn.

KAGAN: All right. Joe, we're going to be back to you many times during the next couple of hours.

Also back to the floor of the U.S. Senate. We're going to do that. And look at other news of the day. Right now, a quick break.

(COMMERCIAL BREAK)

KAGAN: Let's get back to the story unfolding on the floor of the Senate right now and the situation over judicial nominees. A little background for you. Democrats blocked 10 of President Bush's first term appeal court nominees -- appeals court nominees. The president has now re-nominated seven of those judges. Two high on the president's list are Priscilla Owen, who could be next week's filibuster case, and Janis Roger Brown from California. Our political analyst Carlos Watson joins us from Los Angeles with more on this looming showdown. I think we can take looming out of there. We are at showdown status.

Carlos, good morning.

CARLOS WATSON, CNN POLITICAL ANALYST: Good morning. Yes, we're finally here. It's been a long time coming. A lot of conservative activists have frankly been frustrated over the last several months, having felt that Senator Bill Frist, the majority leader from Tennessee, should have moved forward on this more quickly. Now we are here. The debate has begun. Although the real drama may not emerge until next week.

KAGAN: And that's because the vote -- when that first vote would actually come as a test.

WATSON: That's what people think. But Daryn, one of the interesting things about this story, one of the important things is that there could be a number of surprises. At least three potential surprises stand out for me. One is there could actually be a deal. As we speak, there are a number of centrist senators, Democrats who are meeting and discussing ways around this. May be a possible deal, so I wouldn't rule that out.

No. 2, don't forgot that there could be some sort of scandal that emerges to reshape the conversation. As you recall, in the late '90s, when Newt Gingrich stepped down as speaker, there was an unpredictable series of events that included another speaker, Bob Livingston getting enveloped in scandal and stepping down. So don't forget that that could happen.

And then last but not least, there may be other significant events. Particularly international events that may ultimately reshape this conversation or at least put it on the blocks for a little while.

KAGAN: If you want to involve scandal in Washington D.C., that usually is a pretty good bet that something could pop up on that.

Let's look forward, Carlos. How much is this debate and this controversy, and conflict about these particular judges, and how much looking forward over the potential Supreme Court nomination?

WATSON: Very much as you suspect over potential Supreme Court nomination. Because the reality is that 94 of the 162 currently active federal appeals court judges are Republicans. Republicans control 10 of the 13 circuit courts. And if all the president's contested nominees were ultimately approved, only one of the remaining three Democratic controlled circuit courts would actually shift.

So this isn't a big deal in terms of Republican judges being in place. It's a bigger deal, as you suggest, that given people expect there will be an opening on the Supreme Court perhaps this summer if Supreme Court Chief Justice Bill Rehnquist actually steps down.

KAGAN: I want to go ahead and ask you about California politics since we find you in Los Angeles this morning. The City of Angels has a new mayor this time.

WATSON: New mayor the first time since 1872. Hispanic mayor here in the City of Angels, Antonio Villaraigosa. What I think is very interesting about him is not only did he beat an incumbent L.A. mayor for the first time in 50 years, but he has got a very different background, Daryn. And he might be a paradigm changing kind of candidate.

He is not an Ivy Leagued-degree-educated-lawyer, instead -- or the son of famous a politician as the incumbent was. Instead, he was a union organizer for many years. And by his own accounts, grew up in east L.A, fairly difficult circumstances. And since his emergence on the scene some 10 or 12 years ago, you have seen a number of Latino particularly young Latino politicians use unionizing as a springboard into elected office.

KAGAN: Very interesting. Very good. Carlos Watson in Los Angeles this morning. Carlos, thank you.

WATSON: Always good to see you.

KAGAN: Another story for you from Congress. This one extends beyond politics to a story of personal tragedy. Just about 90 minutes ago, we heard from Joan Humphrey Lefkow. You might remember her. She was a federal judge whose husband and mother were killed in her Chicago home. The killer, later committed suicide, was an angry litigant who had earlier appeared before the judge.

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