How long will the Senate tolerate the intolerable?

Ross Mackenzie
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Posted: Apr 28, 2005 12:00 AM

What are some truths about the filibuster, blameworthiness and the nuclear option?

Right now, in the blandest terms, the situation in the Senate seems to be this: Democrats have stymied votes on about a dozen Bush nominees to the appellate courts - stymied votes on some of those nominees for years, some indeed for so much of the president's first term that they withdrew their names from consideration.

With the Republicans having re-elected President Bush and gained seats in both houses of Congress last November, the president has resubmitted the names of many of the stalled nominees. The Democrats are threatening to filibuster them. Tired of the delays, the Republicans are threatening to change the Senate rule on filibusters so that only 51 votes (a majority) would be required to break a filibuster on judicial nominees, as opposed to the current 60-vote requirement.

Democrats answer that in the face of such a change in the filibuster rule, they will shut down the Senate's ability to conduct any business.

As to blame, both parties can boast an ample share.

The filibuster was used most effectively, and for the longest period, by Southern Democrats to thwart civil rights legislation - those Democrats preferring the term "extended debate" to the pejorative "filibuster."

Off and on since the mid-1950s, the filibuster - or the threat of it - has been used on a variety of issues, but perhaps only once regarding a judicial nomination, on that of Abe Fortas to be Chief Justice of the Supreme Court. Fortas never took that seat. Perhaps the master of stymieing judicial nominations was Jesse Helms. The filibuster was not his tool of choice. Rather, he employed the Senate device of "holds" and just sat on unpalatable nominations - as a chicken sits on eggs that never hatch.

So there's plenty of blame for both parties. Now we have the spectacle of (a) Democratic Senators such as Robert Byrd deploring the very idea of changing the filibuster rule, when during the years of Democratic dominance he was the master of changing Senate rules to enable Democratic ambitions of the moment. And we have the spectacle of (b) Democratic Senators such as Patrick Leahy supporting the 60-vote filibuster rule now, but having said on for instance June 18, 1998: "I have stated over and over again on this (Senate) floor that I would . . . object and fight against any filibuster on a judge."

Yet do the Democrats get it? Do they get that they lost the November elections - indeed, that regardless of past blame the voters said directly or indirectly they want up-or-down votes on nominees to the federal courts now? That, in the words of the Constitution, the voters want the Senate to fulfill its advise-and-consent role?

Or do the Democrats get it too well? Do they understand that with congressional division still fairly close, their most effective weapons are party solidarity and threatening filibusters - and the promise to close the Senate to any other business?

Thus far in the president's second term, solidarity has served the Democrats well. Recall, please, all the noise about - let's see: John Negroponte, Michael Chertoff and Paul Wolfowitz; Michael Griffin at NASA; Steven Johnson at the EPA; and Lester Crawford at the FDA. And let us not forget the continuing hoo-ha about John Bolton to be ambassador to the U.N., as though the U.N. did not fully deserve someone to give it a good verbal reaming, at least.

Add in what has happened to administration initiatives for an energy bill (after five years) and Social Security reform, and will anyone deny that Democratic solidarity - with here and there breakaway Republican bipartisanship - has throttled an anticipated Republican juggernaut?

Blend all that with the spotlight now focused on Tom DeLay, and the consequent discussion is not so much about Republicans being better than the other guys - as about their being just as bad.

It's all about power, of course - and ideology.

The Democrats are now saying ridiculous and telltale things.

Senate Minority Leader Harry Reid, on President Bush's re-nominations: "The president is at it again with the extremist judges. (The Senate should not) re-debate the merits of nominees already found too extreme by this chamber."

Former Clinton aide Paul Begala said that California Supreme Court Justice Janice Rogers Brown and Texas Supreme Court Justice Priscilla Owen are at least "three steps to the right of Attila the Hun." (In their most recent elections, Judge Brown was re-elected with 76 percent of the California vote and Judge Owen was endorsed by every major newspaper in Texas.)

An aide to Illinois Senator Dick Durbin wrote in a Nov. 7, 2001, memo on nominee Miguel Estrada: "(He is) especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment."

Teddy Kennedy: "(I will) resist any Neanderthal that is nominated by this president . . . for any federal court."

As the opposition to U.N.-ambassador nominee Bolton reduces to perceived excesses in his personality, so opposition to court nominees Brown and Owen reduces to perceived excesses in their religious beliefs. In that regard, the complaint about Senate Majority Leader Bill Frist is not so much about what he said (Senator Reid "calls me a radical Republican. I don't think it's radical to ask Senators to vote.") as about where he said it (via teleconference to a Louisville Baptist megachurch).

Pledging to be better than the Democrats, and actually being better, the Republicans should put an end to this nonsense.

If they can muster 51 votes to change the filibuster rule as it relates to federal judicial nominees (the nuclear option), they should do it - and never mind Democratic threats to shut down the Senate. They have just about shut it down already.

If they cannot muster 51 votes because of namby Republicans more interested in signifying for Senate clubbiness than in effective government, then they should not allow the Democrats to overplay their minority hand by merely threatening to filibuster.

The Republicans should compel the Democrats to filibuster every nominee. Make the Democrats speak till they're weak - till they drop - or until it becomes crystal clear to the public where the full measure of blame lies for reducing Senate effectiveness to the level of the Sophomore Semantic Society.

It matters little who - which party - bears the major burden of blame for the past. What matters greatly is the lack of movement on key judicial nominations before the Senate now. It's an intolerable situation. One side has to demonstrate it is better than the other, and should do so by moving to tolerate the intolerable no more.

Voting is good. Get it done. Mr. Chairman, call the roll.