Re-inventing the filibuster

Robert Novak
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Posted: Apr 21, 2005 12:00 AM

WASHINGTON -- While re-inventing himself at age 87 in his 47th year as a senator, Robert C. Byrd has denied his clear past use of parliamentary maneuver to force majority rule in the Senate. That fits the broader phenomenon of Democrats reinventing the senatorial filibuster, historically notorious for protecting racial segregation, into a weapon of liberalism.

 Byrd's use of a simple majority rule to make Senate rules fit the wishes of dominant Democrats during the 1970s and 1980s was revealed by legal scholars in January. It took Byrd's lawyers until March 20 for him to claim he did not do what he did. In fact, there is no doubt Byrd led the Democrats in championing majority rights when they had a majority.

 Liberal Democrats, who now extol the filibuster to protect minorities, were in the forefront advocating strict majority rule through most of my nearly 48 years as a reporter covering Congress. As recently as 2000, architects of the filibuster strategy to block President Bush's judicial nominees -- with Democrat Bill Clinton still in the White House -- were demanding straight up-or-down votes on judges.

 The showdown in the Senate may be only three or four weeks away. The unprecedented Democratic blockage of 16 Bush appellate choices has led Senate Majority Leader Bill Frist to attempt a maneuver that, in effect, confirms a judge by a simple majority vote of 51 rather than the 60 needed to break a filibuster -- unfortunately first self-described by Republicans as the "nuclear option." The Democratic response that this approach assails constitutional rights was undermined by a close examination of Byrd's long record in the Senate.

 In January, the Harvard Journal of Law & Public Policy published an account by two Washington lawyers, Martin B. Gold and Dimple Gupta, of what they called the "constitutional option." For more than a century, the Senate frequently resorted to parliamentary tactics to impose majority rule -- most recently by Bob Byrd.

 Byrd, who entered political life as a Ku Klux Klan member, in the '60s was a conservative Democrat, and was delighted when Richard Nixon listed him as a possible Supreme Court nominee. Byrd's next role was as the hard driving majority leader rolling over liberal dissenters. He since has taken a rapid trip to the left, with the radical MoveOn.org raising big money for his 2006 re-election.

 Gold and Gupta cited four instances where Byrd had amended Senate rules with majority votes. Byrd ignored this report for two months until Republican Sen. Orrin Hatch on March 10 went on the Senate floor to discuss the four cases. It took 10 more days for Byrd to respond to Gold, Gupta and Hatch by denying the past: "Their claims are false . . . they are dead wrong. Dead wrong."

 But Byrd cannot erase what really happened -- as on Oct. 3, 1977, when Majority Leader Byrd smashed a liberal filibuster against natural gas deregulation. The liberal Sen. James Abourezk of South Dakota complained that Byrd wanted "to change the entire rules of the Senate during the heat of the debate."

 Usually, however, liberals were aligned against the filibuster, the bulwark preventing civil rights legislation until 1957. During Clinton's presidency, Senate Democratic Leader Thomas Daschle and Sen. Edward M. Kennedy repeatedly demanded up-or-down majority votes on judicial nominations. Once Bush was elected, they crafted a filibuster strategy to block judicial nominees.

 Through my reporting career on Capitol Hill, filibuster advocates did not utter the dreaded f-word (with Southern segregationists referring to it as "extended debate"). "Filibuster" was talked about by foes, such as Democratic Sen. Patrick Leahy on June 18, 1998: "I have stated over and over again on this floor that I would . . . object and fight against any filibuster on a judge." Liberals now praise the filibuster by name. Leahy, the Judiciary Committee's ranking Democrat, on April 6 declared: "Eliminating the filibuster by the nuclear option would violate and destroy the Constitution's design of the Senate as an effective check on the executive."

 Frist reiterated Tuesday that his plans refer only to nominations: "I will not act in any way to impact the rights of colleagues when it comes to legislation." Robert Byrd observed no such boundaries when he was majority leader.