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Senate's change isn't just one rule

If Republicans make it easier to end filibusters over judicial nominees, they may affect all of politics.

By WES ALLISON
Published April 25, 2005

WASHINGTON - To the millions of Americans inclined to ignore such shenanigans, it might seem like parliamentary minutiae, the sort of inside-the-Beltway bickering that has made Congress infamous.

But the coming resolution of the monthslong struggle in the U.S. Senate over conservative judicial appointees may resonate far beyond Capitol Hill, with repercussions ranging from the future makeup of the U.S. Supreme Court to who might be the next president.

Republicans in the Senate are poised to fundamentally alter the tradition of the tradition-bound Senate: Under current rules, as few as 40 senators can block a judicial nominee from reaching the Senate floor for a vote. Democrats have used the threat of a filibuster to block 10 of President Bush's 52 nominees for appeals court vacancies.

Now Republicans are threatening to change the rules so a filibuster could be broken by a simple majority.

Democrats say the plan would create the worst constitutional crisis in Senate history by eroding the chamber's tradition of protecting minority rights. Republicans say it would restore the Senate's constitutional role to give "advice and consent" to the president's nominees.

The coming showdown has forced the examination of a key question of the American experiment: In a representative democracy, how much power should the minority have?

The past

The Senate has been giving presidents and other political leaders fits since Thomas Jefferson's day, when the Senate refused to go along with his attempts to impeach federal judges appointed by the Federalist administration before him.

Since its founding, the Senate's rules and procedures have been geared toward protecting the rights of the minority; it was constructed to serve as a counterbalance to the more volatile House, where the majority rules with absolute power.

James Madison, one of the architects of the American system, called the Senate a "necessary fence." It was key to the founders' desire to create a representative democracy "that wouldn't blow with the wind," said Donald A. Ritchie, the associate Senate historian. "They were afraid of the tyranny of the majority."

Each state, even the smallest, has two senators; in the House, representatives are alloted by population. House members run for election every two years; a senator serves six. Only one-third of the Senate faces election at any one time, another bulwark against the political winds of the day.

Unlike in the House, where freshmen are essentially voiceless, even the newest senator can obstruct legislation or place a hold on an administrative appointee. Unanimous consent is required for even the most mundane matters, ensuring a certain level of bipartisanship.

"It's frustrating to presidents, it's frustrating to majority leaders, but the Senate historically has been a slow, deliberative body," Ritchie said.

"It wasn't designed to be obstructive, but it was designed to give people time to discuss things, and to protect the minority."

The filibuster is an integral part of that. There was no way to break a filibuster until 1917, when senators changed the rules so a two-thirds vote could end a filibuster. In 1975, with Democrats in the majority, the threshold was lowered to the current standard, 60 votes.

From the 1920s to the 1960s, the filibuster primarily was used by Southern conservatives to block civil rights legislation. Liberals generally avoided it because they didn't want to validate the tactic. In the 1950s, liberal senators unsuccessfully tried to change the rules to allow a filibuster to be broken with just 51 votes.

Ritchie notes there's another way to break a filibuster, inherent in the way the Senate is supposed to work, but missing in the current contretemps: compromise.

The present

Sen. Bill Frist is an amiable, Harvard-educated heart surgeon from Nashville who wants to be president.

During his two-year tenure as Senate majority leader, he has carefully courted social conservatives, whose support is key to winning the Republican nomination. For those constituents, confirming Bush's judicial nominees has become a priority and a critical test of Frist's leadership. They are pressing him to act, and some conservative leaders say his credibility as a presidential candidate depends on it.

"Bill Frist has got to deliver," said Richard Lessner, executive director of the influential American Conservative Union. "We've got to get these judges confirmed, and he cannot continue to let the Democrats rewrite the rules on judicial confirmations on his watch, and at the same time aspire to be president.

"The wheel of history has turned, and he's the guy on the spot."

They say it's also important for Frist to act now, before the president has to nominate a new member of the Supreme Court.

With Chief Justice William Rehnquist fighting thyroid cancer and several other justices advancing into old age, Bush is expected to make at least one Supreme Court appointment during his term.

A nominee who needs just 51 votes could be far more conservative than one who needs 60.

"This is setting the parameters for the debate over the all-important Supreme Court nomination that's eventually going to come," said Tony Perkins, president of the Family Resource Council, which has been running print and TV ads aimed at building public support for the filibuster change. "I think the timing is right."

On Sunday, Frist appeared via video with several national evangelical leaders, including Perkins and James Dobson, chairman of Focus on the Family, for a program called Justice Sunday: Stopping the Filibuster Against People of Faith.

Broadcast from a church in Louisville, Ky., to churches nationwide, the video tied the filibuster to what conservatives consider a trend toward "judicial activism," which they say is evident in rulings against Republican-led attempts to curb abortion and gay rights and allow more public display of religion.

The debate has taken on the feel and tactics of a political campaign. The Republican National Committee is urging Republicans to call Democratic leaders to demand floor votes on the presidential nominees.

People for the American Way, a liberal advocacy group, is running a $5-million advertising campaign featuring "common-sense Republican firefighter Ted Nonini calling for the preservation of the filibuster."

Democratic groups are asking supporters to counsel their senators against what they call the "nuclear option." It has become their latest cause for fundraising.

"If we're going to stop this abuse of power, we need to elect more Democrats to the Senate," Paul Begala, the Crossfire host and former Clinton counsel, wrote to Democratic voters. "Help the (Democratic Senatorial Campaign Committee) do just that by making a contribution today."

Hardly a day passes at the Capitol without competing media events. Democrats portray the judges they have blocked as right of the mainstream, with objectionable records or statements on environmental regulation, the role of religion in government, civil rights and privacy matters.

Doing away with the filibuster would mark an unprecedented grab for power, they say, and would lead to one-party domination.

Republicans frame the change as constitutional CPR, a difficult but necessary procedure that will restore the integrity of the nominating process. They call it the "constitutional option," and say that never has the filibuster been used so inappropriately.

"Almost all of our members are concerned about what is happening to our judges," said Sen. Kay Bailey Hutchison, R-Texas. "They're concerned about the precedent the Democrats have set in the last session."

But Republicans blocked plenty of President Bill Clinton's judicial nominees, too - they just didn't always need the filibuster, because they held the majority for most of his two terms. Republicans simply refused to schedule hearings for them.

Republicans blocked 61 of Clinton's judicial nominees, including 23 nominees to appellate courts. Back then, the Democrats made the same argument the Republicans make now: The Senate at least should be allowed to vote on the appointees.

Lessner was one of several conservative leaders invited to the White House in early 2001, when Bush introduced his first set of judicial nominees. Several were staunch conservatives who were blocked during the president's first term, and recently have been renominated. Lessner understands Frist's political reluctance but says it's past time to act.

"The Senate is a creaky, old institution. It's hard to get almost anything done against a determined minority," Lessner said. "But the Democrats have really left him with no option."

The future

Frist's Democratic counterpart is the softspoken Senate minority leader, Harry Reid of Nevada. To hear him tell it, invoking the "nuclear option" would unravel the Senate.

It also would be only a matter of time, he says, before Republicans changed the rules to override filibusters on legislation and executive appointees.

Republicans, wary of appearing power-hungry, say that won't happen. "If I must act to bring fairness back to the judicial nomination process, I will not act in any way to impact the rights of colleagues when it comes to legislation," Frist said last week.

But a recent study by the Congressional Research Service, a nonpartisan arm of Congress, found it may set precedent for future change. The report warned that it "could make it dramatically more difficult to obtain unanimous consent for anything else that follows."

Frist needs 50 votes to make the change, plus the support of Vice President Dick Cheney, the president of the Senate. But several moderate Republicans are balking, and Reid has threatened to use every procedural trick possible to confound almost all Senate business.

Frist says he would prefer to make a deal. Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, also took the floor last week to urge compromise.

But a hearing Thursday by his committee offered a preview of the battle likely to come, when it met to consider two of the president's most controversial appointees: Texas Supreme Court Justice Priscilla Owen, a nominee to the 5th U.S. Circuit Court of Appeals; and California Supreme Court Justice Janice Rogers Brown, nominated to the U.S. Court of Appeals for the District of Columbia.

Republicans praised them as solid jurists. But Sen. Patrick Leahy of Vermont, the committee's senior Democrat, blasted Owen for "ends-oriented decisionmaking" and for favoring "big business over ordinary people."

He noted bitterly that two of Clinton's nominees to the 5th Circuit "were not even allowed to have a hearing, to say nothing about a vote."

On Rogers Brown, Sen. Diane Feinstein, D-Calif., said her rulings show she holds "an extreme ideology that I believe is really outside the American mainstream."

The Democrats put the next step clearly in the hands of the Republicans: They vowed to filibuster both judges if the committee approved them and sent them to the Senate for a full vote. But by two party-line votes, 10 Republicans to eight Democrats, the committee did.

[Last modified April 25, 2005, 01:05:08]