Filibustering the judicial nominees
By Paul M. Weyrich
web posted May 2, 2005
I had not worked for the U.S. Senate for more than a week when my mentor Senator Gordon L. Allott (R-CO) said something which absolutely startled me. I recall it as if it were yesterday. He said, "Just remember, in politics perception is reality." I knew deep down that no one ever had explained it quite that way. So it was then. So it is now. Senate Majority Leader Bill Frist (R-TN) has proposed a "compromise" in the never-ending battle over judicial nominees whom the President has nominated and who are waiting for an up-or-down vote in the Senate.
This battle has gone on since the 108th Congress, when Senator Frist had only 51 Republican Senators and Senate Minority Leader Tom Daschle (D-SD) devised a strategy to require 60 votes for any Circuit Court or Supreme Court nominee. The Circuit Courts of Appeal are very important because over 95 percent of all cases involving a constitutional issue end up there. The Supreme Court takes only about 80 cases, many implicating no constitutional issue.
During President Bush's first term there was no Supreme Court vacancy. Bush, however, did recommend better nominees for the Courts of Appeal than did his father or the revered Ronald Reagan. Excellent people. So at variance from 215 years of procedure, Senator Frist found himself with a filibuster aimed at these excellent Bush nominees.
Thus began the cry to limit the filibuster of judicial nominees. Frist began talking about a rule change which would restore the traditional Senate rules followed before the Senate of the 108th Congress invoked the filibuster for Circuit Court nominees. Frist simply did not have the votes then to do anything about the situation.
Then came the 2004 election. Republicans picked up four seats, including South Dakota which meant that Minority Leader Tom Daschle became the first leader of either party to be defeated since 1952. Surely, Frist and many outside groups thought that given this change the Democrats would stop using the filibuster for higher court nominees. We all thought wrong. The 109th Congress had not been sworn in when the new Senate Minority Leader, Harry Reid (D-NV), pronounced that his Democrats would filibuster the same nominees they filibustered in the 108th Congress if indeed President Bush re-submitted their nominations. It appears Senator Reid has the 41 votes needed to do so. He has 45 votes including that of retiring Vermont Independent James P. Jeffords, who votes with the Democrats.
So again there was talk of what Democrats and the media now have dubbed the "nuclear option." Reid added, knowing how weak Republicans are about confrontation, that if Senator Frist and the Republicans exercise the "nuclear option" (what Senator Frist calls the "constitutional option") the Democrats will shut down the Senate and prevent it from conducting all further business for the duration of the 109th Congress. That was intended to cause wobbly Republicans to run screaming into the Senate Cloakroom. It did not. If anything it had the opposite effect.
While Senator Frist has 55 Senate Republicans he does not have 55 conservatives. While liberal Republicans are no longer the powerhouse they were (when I came to work in the Senate 38 years ago half of the 34 Republicans in office were out and out liberals) there are still a few of them. Frist can afford to lose five. Then Vice President Cheney, in his capacity as President of the Senate, would cast the tie vote in favor of the rules change, that is reverting the traditional rules. Frist, however, does not want to lose more than four votes. That way a majority of Senators would make the decision.
When it became apparent last week that Frist had enough votes to exercise the "constitutional option" Democrats began to throw out possible compromise proposals. The dean of Washington correspondents, David Broder, suggested that Democrats let the President's judicial nominees be approved in return for retaining the filibuster that could be used against a Presidential nominee for the Supreme Court. Broder suggested that all of the nominees which the Democrats have filibustered get an up-or-down vote. There are seven such nominees. There were ten but three, for one reason or another, are not being re-submitted. Senator Joseph P. Biden, Jr. (D-DE) suggested that only five nominees should be approved and that the two most extreme nominees should not be approved. Imagine the President having to tell two of his nominees, "You are too extreme so you are not going to get a vote." Reid, for his part, spoke of approving only two of the President's nominees. As Senator Frist's policy director, Bill Wichterman, aptly said, "These Democrats are negotiating with themselves."
Senator Frist could not have voters believe the Democrats were willing to compromise and the mean old Republicans were unwilling to compromise. Not to be outdone, Frist offered a compromise of his own. It would leave the filibuster intact for Federal District Court nominees which have not been filibustered. For Circuit Courts and the Supreme Court nominations the Minority Party would get 100 hours of debate for each nominee after which an up-or-down vote would be guaranteed. Senator Reid called the proposal "a wet kiss for the extreme right wing." He did not reject it immediately because he did not want to look unreasonable.
Here we go again. In politics perception is reality. I suspect before this is over even more proposals will be offered by both sides. Frist last week told a luncheon held at the Free Congress facility on Capitol Hill that he would not accept any proposal which does not require an up-or-down vote for Circuit and Supreme Court nominees. If he sticks to his guns on that (Republicans are suckers for a deal) then Republicans well may end up detonating the "constitutional option" while still appearing to be the reasonable party. 
Paul M. Weyrich is the Chairman and CEO of the Free Congress Foundation.
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