One of life's little ironies played itself out in the United States Senate these past few days. Let us return to 2005. Then Majority Leader William H. (Bill) Frist, M.D. (R-TN) threatened a rules change which would have made confirmations subject to an up-or-down vote. Analysts such as Mike Hammond, former Counsel to the Senate Steering Committee (the caucus of conservative Senators) argued that if Senate Rule 22 were amended for confirmation votes it well could carry over into the legislative arena and end the filibuster. Frist was hesitant and waited too long. Senator John S. McCain (R-AZ), who was no great friend of the Majority Leader, pulled the rug out from him by putting together the Gang of 14. Because of that move Rule 22 was preserved. According to Senator Robert C. Byrd (D-WVA) the Senate, indeed the Republic itself, was saved.
Early in 2005 Frist had told me that he would not run for the Presidency unless he achieved real reform and could run on that record. With the end of what was called the "nuclear option," Frist failed to achieve major reform in the Senate. True to his word, he headed home. Frist is a friend. I regard him as one of the finest Christians ever to have graced that office. But he was not an experienced leader. He was too cautious.
All during the 109th Congress Frist was frustrated. He had 55 Republican Senators. Yet because of the need to get 60 votes to avoid a filibuster, the Democrats were more in control than Frist or the Republicans. They played the game brilliantly, especially with the help of the media. Very little was accomplished in that Congress. The tax cuts are not permanent. There was no entitlement reform. Most appropriations bills, although passed by the House, died in the Senate.
Flip to 2008. Harry M. Reid is Majority Leader. He has 51 Senators, although Senator Tim Johnson (D-SD) is unable to serve at this time so he is not there to vote. Rule 22 was not changed. The filibuster lives. The Democrats crafted the fine art of simply threatening a filibuster and that ended most legislative reform. But now Senator Mitch McConnell (R-KY) is the Minority Leader. He has 49 votes, 45 of which usually are conservative. So Reid brings up the non-binding resolution critical of the President's conduct of the Iraqi War. He had predicted the day before that he could count 75 votes for the non-binding resolution. Then the vote. Reed fell 11 votes short of achieving cloture. All Republicans voted with McConnell. Morale changed instantly. At last Republicans showed a little backbone. Reid had it good dealing with Frist. Frist is a genuinely nice guy. He bent over backwards to be accommodating to the then minority. But they showed no such mercy. They set a record for the number of threatened and real filibusters. Now comes McConnell. He may not be warm and cuddly (although his wife, Labor Secretary Elaine Chao may feel differently) but he is tough and he is a leader.
I watched him win over a skeptical conservative audience. First, he was on the side of grassroots conservatives by leading the charge to kill that dreadful so-called Lobbying Reform Bill. Every conservative group in America was thankful for what he had done to kill our right to redress our grievances. Moreover, he is taking another shot at McCain-Feingold, the law upheld by the United States Supreme Court, which forbids advertisements about a Senator or Congressman's record 30 days before a primary and 60 days before the general election. McConnell had brought the case against McCain-Feingold to the Supreme Court. In a 5-4 decision the Court sustained its constitutionality. Everyone was shocked. President Bush had signed the bill saying he was sure it was unconstitutional and the courts would straighten things out. It didn't turn out that way. Now there is a new case brought by a Wisconsin pro-life group. The United States Court of Appeals did strike down a portion of McCain-Feingold but now it goes to the Supreme Court. McConnell has weighed in with a brief amicus. He allowed as how the Court doesn't pay much attention to briefs amici but held out the hope that perhaps they might read his. Just to have another crack at McCain-Feingold was welcome indeed.
But what really made McConnell a hero to conservatives was his declaration that the Republican Caucus has the goal of confirmation of appellate judges before the end of the Bush term. He has chosen the number of 17 he seeks to have approved. That is the average number of appellate judges which were approved at the end of the Presidency of both Republicans and Democrats when the opposite party was in control. He thinks he may be able to persuade the Democratic leadership to accept that number. The problem is that Senator Patrick J. Leahy (D-VT), Chairman of the Judiciary Committee, could bottle up all the nominations and vote none to the floor. McConnell has in mind a plan to deal with that possible problem.
McConnell correctly stated that the House is geared toward the majority and the Senate is geared toward the minority. Senator Reid was so frustrated after he failed to achieve cloture that he shouted at reporters that he was in charge of the Senate, not the Republicans. I've got big news for you, Senator. That is not true. Shortly after the election I spoke with a veteran Senator. He expressed the view of most of his colleagues. Better in the minority at 49 than the majority at 51. If George F. Allen had held his seat in Virginia Republicans would be in the same position that Reid is now. There would be high expectations with little possibility for delivery. What is ironic is that had Frist moved in timely fashion and amended Rule 22 Frist would be in a Presidential race now. But Reid would hold the cards. If he could get the Parliamentarian to rule that the end of the filibuster not only applied to confirmations but to legislation as well and then if the ruling could be upheld by Reid's majority he would be running the show. Republicans are thanking the Good Lord that Frist didn't move because they can play the same game as the Democrats played in the past several Congresses. That makes McConnell the fellow who holds the cards. As long he can persuade 41 of his 49 Senators to stick with him he can kill any legislation. That being the case he has great leverage over scheduling. If Reid really wanted to pass something he would be obliged to make concessions to McConnell. Now Reid and his minions will scream bloody murder. It will be up to McConnell and Senator Trent Lott (R-MS), Minority Whip, to explain to the public what is going on and why. They did just that on the non-binding resolution. It worked. All week long I heard chants of "at last Republicans have shown some backbone."
If McConnell can pick up the kind of allies I witnessed his having harnessed, and if (and this is really the hard part) he and the GOP Leadership, which includes the just re-elected Senator John Kyl (R-AZ), can explain this in plain English so that ordinary folks can understand it, he just might stave off what could be a disastrous Senate election in 2008. It presently is looking as if the GOP will emerge with 46 votes but if the Presidential election goes the wrong way and brings out a heavy liberal vote McConnell would end up with only 42 Senators. Continuing the sort of leadership McConnell has shown in this first month bodes well for the future. If he can keep it up and explain it well, voters might give Republicans another chance.
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