What would Mr. Smith think? Parties feverishly spin the filibuster

PHILADELPHIA – Since when is the filibuster sexy?

Since now. An arcane parliamentary tactic, currently being used by the Senate Democratic minority to block 10 of President Bush’s judicial nominees, has become the hottest issue in politics. With Republicans poised to change Senate rules and erase the tactic – a historic moment expected Tuesday – this clash of wills has taken on the trappings of an ideological war.

And, as in war itself, truth may be the first casualty.

As evidenced by the latest rhetoric, both camps, focused solely on winning, have been spinning with impunity, omitting inconvenient facts that might dilute their arguments – and alienate their ideological allies, many of whom equate nuance with weakness.

For instance:

Republican senators say the Constitution requires that a presidential nominee be voted up or down by a simple majority of senators. On the floor the other day, John Cornyn said this view is supported by “200 years of consistent Senate and constitutional tradition,” and his Texas colleague, Kay Bailey Hutchison, later said, “The Constitution in every way indicates that a majority vote is required.”

But the Constitution says neither. There is no language requiring senators to take nominees to the floor, nor to confirm or reject by a simple majority or any other margin.

Bill Frist, the Senate Republican leader, has acknowledged this. Earlier this month on the floor, he was challenged to find the constitutional language that supports the GOP stance. He said: “The answer is no, the language is not there.”

The Constitution specifically permits the Senate to come up with its own rules on how it might “advise and consent” on judicial nominees. Since the early 19th century, those rules have permitted filibusters – stalling tactics by the minority, in the form of extended debate – and the rules since 1975 decree that it takes 60 senators to cut off a filibuster. These facts are stated on the official Senate Web site.

Democratic senators are wrapping the filibuster in the flag. Tom Harkin, of Iowa, said that “for more than two centuries … it has been essential to America’s system of checks and balances.” Frank Lautenberg, of New Jersey, called it “an American tradition.” John Kerry, of Massachusetts, said the principle of minority rights “makes our democracy so respected by people across this planet.”

Harkin, however, chose not to mention what he said in 1995 – when he had called the filibuster “a relic of the ancient past,” and declared his interest in “slaying the filibuster dinosaur.” In fact, he co-sponsored a bill to do just that. It failed, but 18 senators – all Democrats frustrated by GOP resistance to President Clinton’s agenda – voted with him.

Two of the would-be slayers were Lautenberg and Kerry.

Republican Sen. Orrin Hatch, of Utah, lamented that the Democratic filibuster was tying up 10 Bush court nominees (there are 55 GOP senators – five shy of the current number required to break the stalemate). Hatch, visibly alarmed, said, “What’s wrong with taking a vote up or down? The Senate can’t confirm nominees if senators can’t vote on them!”

But Hatch didn’t mention the strategy he employed as Judiciary Committee chairman in the Clinton era. By changing panel rules, he ensured that many of Clinton’s court choices would get stuck in committee. The new language decreed that anyone could be put on hold if either senator from the nominee’s home state – in that era, presumably a Republican – filed an objection known as a “blue slip.”

This tactic, strictly speaking, was not a filibuster, but it prevented more than 60 Clinton nominees from receiving up-or-down votes on the Senate floor. Some of those nominations remained in limbo for as long as four years. (Later, with Bush in office, Hatch changed the rule. Now it takes both senators from the home state to put a nominee in limbo.)

On the Democratic side, Lautenberg and others pointed out – again with help from the Senate Web site – that at least 14 judicial nominations had been filibustered since 1968, rebutting the claim of Pennsylvania’s Rick Santorum that the Democratic tactic was “an infection that has entered the bloodstream.”

But no Democrat has mentioned that the party decision to filibuster 10 Bush nominees and prevent floor votes by the GOP majority is a major escalation of partisan strife. Past filibusters had been launched ad hoc against individual nominees. But the current Democratic strategy was mapped in 2001 with liberal interest groups, which rated Bush nominees on ideological grounds. The American Bar Association, by contrast, has vetted favorably the 10 nominees now being stymied.

On the Senate floor, Republicans repeatedly describe their impending vote to eliminate the filibuster as “the constitutional option.” Here’s John Ensign, of Nevada: “What we call the ‘constitutional option’ is just re-establishing what the Senate has always done,” which is to give people “an up-or-down vote in a timely fashion – in committee or on the floor.”

They don’t mention, however, that, as in any political campaign, positive wordplay is important. And Republican wordsmiths have concluded that the original term, “the nuclear option” (coined by GOP Sen. Trent Lott), sounded too negative. So here’s what a GOP Senate memo advised the other day: “Do not refer to ‘the nuclear option’ – it should be called the constitutional option.”

The memo also urged GOP senators to use positive words such as “fairness.” David Vitter, of Louisiana, may have gotten the memo: “And (Bush nominees) don’t even get an up-or-down vote on the floor? That’s not fair. That’s not fair in the minds of ordinary Americans.”

Democratic Sen. Charles Schumer, of New York, an architect of the current strategy, said “there is nothing in the Constitution” that bars the Democrats from filibustering; by stalling those Bush nominees, Democrats are standing up for “our precious system of checks and balances.” He didn’t mention that, back in 2000, when GOP senators were stalling Clinton nominees, he considered such behavior to be “a mockery of the Constitution” and “a breach of the Senate’s constitutional mandate” to vote on presidential nominees.

The climax on the Senate floor is expected within days. And in terms of public opinion, the party that wins the spin war will garner the best reviews.