WASHINGTON – A looming power play by Senate Republican leaders to clamp down on filibusters against judicial nominees is a high-risk strategy.
It could change the balance of power in the Senate, erode the rights of the minority party and backfire against Republicans in the long term.
The Senate is “not always going to be Republican,” former Senate Majority Leader Bob Dole, the 1996 GOP presidential candidate, is reminding fellow Republicans. “Think down the road,” he advises.
Dole is one of several former Senate majority leaders who have counseled a go-slow approach on the brink of a parliamentary war over Democratic filibusters – delaying tactics – against President Bush’s judicial nominees.
The current majority leader, Sen. Bill Frist, R-Tenn., and some other leading Republicans argue that the Constitution’s “advice and consent” clause is under assault. Requiring any threshold greater than a majority vote in the 100-member Senate for confirmation is unconstitutional, they say.
It now takes 60 votes to shut down a filibuster. That is fine for legislation, but inappropriate for judicial nominations, Frist and his colleagues argue.
Frist soon may seek to declare that a judicial nominee needs only a 51-vote majority and cannot be subject to the 60-vote margin needed to stop a filibuster.
Some are calling this approach the “nuclear option,” one sure to cause Democrats to retaliate and sour any semblance of a working relationship between the parties.
A likely 2008 presidential contender, Frist is under pressure to force a Senate showdown in the coming weeks. But not every Senate Republican is with him on the issue.
“Someday there will be a liberal Democrat president and a liberal Democrat Congress,” Sen. John McCain, R-Ariz., told MSNBC last week. “Do we want a bunch of liberal judges approved by the Senate of the United States with 51 votes if Democrats are in the majority?”
Upping the ante is Frist’s planned taped message with Christian conservatives who portray Democrats as “against people of faith” for blocking Bush’s nominees.
Further raising the temperature: Republicans who have criticized the federal judiciary over the Terri Schiavo feeding-tube case.
Democrats have promised to retaliate with maneuvers that could tie the Senate in knots. The Democrats’ leader, Sen. Harry Reid of Nevada, said a campaign by “radical Republicans” would overturn a 200-year tradition in the Senate and “stop the ability of senators from talking, from filibustering.”
The skirmish is a precursor to an expected battle over a Supreme Court nominee.
Both parties have used filibusters over the years and both parties have been accused of violating the rules.
It has been a long time since filibusters were conducted by senators who spoke hour after hour in the full Senate. One masterful practitioner was the late Sen. Strom Thurmond, R-S.C.
Now, for the most part, filibusters are merely threatened. Still, that usually is enough to trigger the filing of a motion, which requires 60 votes, to sharply limit debate. In practical terms, little can get through the Senate without at least 60 votes.
Barring filibusters for judicial nominations “would be a serious blow to minority rights in the Senate. There has always been some form of extended debate, although from 1917 on there have been ways of closing it off,” said Allan J. Lichtman, a political historian at American University.
In 1917, the Senate adopted a rule to cut off filibusters with a two-thirds vote of the chamber. The 67 vote requirement was reduced to the current 60 votes in 1975.
Sen. Robert C. Byrd, D-W.Va., now sharply denounces Republican tactics to limit filibusters, even likening the tactics to those used by Adolf Hitler in his rise to power.
But when he was majority leader in 1977, Byrd joined forces with then-Vice President Walter Mondale in crushing a filibuster by two members of his own party – Sens. Howard Metzenbaum, D-Ohio, and James Abourezk, D-S.D. – on a proposal to deregulate natural gas prices.
With Mondale presiding, Byrd manipulated Senate rules to force hundreds of pending amendments – filed as a delaying tactic – to be ruled out of order. Byrd later won adoption of a rule change barring such “filibusters by amendment.”
The White House insists publicly that it is keeping its distance from how the Senate conducts its business.
But Bush told newspaper editors last week: “I think my judges ought to get an up or down vote, period.”