Filibuster imperils Foster GOP foes in Senate are accused of playing presidential politics


WASHINGTON -- The nomination of Dr. Henry W. Foster Jr. as surgeon general is on the brink of defeat after President Clinton failed yesterday to muster enough Senate votes to break a filibuster by Republican opponents.

Mr. Clinton, standing beside Dr. Foster in the Rose Garden yesterday afternoon, vowed to continue the bruising battle for confirmation before a second -- and likely final -- vote today. "I'm not through yet," Mr. Clinton said, looking grim and determined. "We're going to do our best to win it."

But the administration needs to reverse the votes of three Republican senators, and as of last night there were no signs that it would gain the support needed.

Dr. Foster, an obstetrician-gynecologist from Nashville, Tenn., fell three votes shy of the 60 needed to break a filibuster by Sen. Phil Gramm, a candidate for the Republican presidential nomination. Mr. Gramm has led the charge by critics who say they are disturbed that Dr. Foster has performed several dozen abortions in his 38-year career and that he was initially misleading about how many he performed.

Dr. Foster's supporters, including some Republicans, contended yesterday that the nomination fight was all about presidential politics, with Senator Gramm and Majority Leader Bob Dole, another GOP presidential candidate, trying to outdo each other in their appeals to the Republican Party's conservative wing, which opposes Dr. Foster.

Eleven Republicans joined all 46 Democrats in voting to end the filibuster yesterday. Some of those Republicans said they thought Dr. Foster deserved a vote, even though they opposed his nomination.

Still, Senate vote-counters on both sides agreed that the White House had lined up the 50 votes needed to win confirmation in a straight up-and-down vote, and that the only way to kill the nomination was through a filibuster.

Mike McCurry, the White House spokesman, acknowledged it was not at all clear that the administration would be able to round up three more senators.

Some presidential aides were quietly discussing a fallback position yesterday, should the nomination fail. This would entail finding a role in the administration for Dr. Foster -- one that would not require Senate confirmation -- in which he would become a visible spokesman for teen-age pregnancy prevention.

But White House officials yesterday called such talk premature.

After the vote, Mr. Clinton criticized Republicans for being beholden to anti-abortion activists who have fought the nomination from the start, and for doing "a disservice to our whole system of democracy."

"Make no mistake about it, this was not a vote about the right of a president to choose a surgeon general," the president said. "This was really a vote about every American woman's right to choose. Because [Dr. Foster] cannot pass the political litmus test that has a stranglehold on the other party, they cannot even allow a simple vote."

Asks for 'fairness'

For his part, Dr. Foster said briefly, "All I ask of the Senate is for the fairness that has been provided to previous nominations, the right to an up-or-down vote."

The nomination, embroiled for months in partisan politics involving abortion rights, was debated for more than three hours on the Senate floor yesterday.

Charging that Mr. Dole and Mr. Gramm were pandering to socially conservative Republicans, many of Dr. Foster's

supporters called the nominee the first "victim" of the 1996 presidential race, and yesterday's vote, the first "Republican primary."

"This is a low moment for the U.S. Senate," said Sen. Christopher J. Dodd, a Connecticut Democrat. "This isn't about Dr. Foster. We're engaged here in presidential politics, a game of one-upmanship, in my view."

Sen. Jim Exon, a Nebraska Democrat, said: "Dr. Foster is being crucified on the altar of presidential politics, pure and simple. Crucifying someone to enhance someone else's presidential ambitions is a sorry sight indeed."

Sen. James M. Jeffords, a Vermont Republican, said that to deny Dr. Foster a vote, especially after he received a favorable recommendation last month from the Senate Labor and Human Resources Committee, which held hearings on the nomination, was "indefensible."

Many senators noted that previous controversial nominees, such Supreme Court Justice Clarence Thomas, would not have won confirmation had they been required to muster the 60 votes needed to overcome a filibuster.

Dole responds

But Senator Dole, responding to Democrats' cry that a confirmation vote for Dr. Foster was a matter of fairness, said, "I've got a memory for fairness." He noted that, in the past, other nominees have come up for "cloture" votes -- votes to end a filibuster -- in the Senate, most notably William H. Rehnquist when, as a Supreme Court justice, he was nominated to be chief justice in 1986.

The Kansas Republican, saying Dr. Foster was "the wrong person for the job," insisted it was the White House that was engaged in presidential politics by nominating Dr. Foster and thereby "trying to drive a wedge between Republicans on the issue of abortion."

Mr. Gramm said the nominee had a "credibility problem," citing the fact that Dr. Foster first said he performed "fewer than a dozen" abortions and later raised the total to 39.

And, trying to link Dr. Foster with the previous surgeon general, Dr. M. Joycelyn Elders, who was forced to resign because of intemperate remarks about such issues as drug legalization and sex education, Mr. Gramm said the nominee did not represent traditional family values.

Explaining his decision to impede the vote, the Texas Republican said, "We made a mistake with Joycelyn Elders by not denying her a vote on confirmation. That's a mistake I am determined not to make again."

Supporters, such as Sen. Edward M. Kennedy, a Massachusetts Democrat, noted that Dr. Foster had been recommended by Republican politicians and had even been recognized as a "Point of Light" by Republican President George Bush.

Toward the end of yesterday's debate, more than a dozen members of the Congressional Black Caucus walked into the Senate chamber in a show of support for the African-American doctor.

Daschle optimistic

After yesterday's 57-43 vote, Democratic Leader Tom Daschle of South Dakota said he thought there was "clearly a possibility" that, over the next 24 hours, Dr. Foster's supporters would be able to pick up three Republican votes. Mr. Daschle suggested that public pressure to support Dr. Foster would mount as Americans -- most of whom, according to polls, think Dr. Foster should be confirmed -- see he is being denied a vote on a procedural move.

Maryland Democrat Barbara A. Mikulski, who decried the "new toxic atmosphere" in which presidential nominees now go forward, was somewhat optimistic about Dr. Foster's chances today. "Today was decision day No. 1," Ms. Mikulski said. "We believe that tomorrow, decision day No. 2, we will bring in three more votes. We believe we will do it."

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