WASHINGTON – The personal stakes in the Senate fight over confirmation of judges could not be higher. President Bush has staked his prestige on a direct challenge to Senate Democrats by renominating for the circuit courts seven judges whose confirmation was blocked in the last Congress by the threat of Democratic filibusters.
The White House has pressed Majority Leader Bill Frist to outlaw a repetition of such tactics by lining up 50 votes to sustain a ruling by Vice President Cheney that judicial filibusters are not protected by Senate rules. Were more than five of the 55 Republican senators to desert the president on that issue, it would be a heavy blow to his influence.
Frist, who has made the issue his personal cause, also has much riding on the outcome – including his claim on support from staunch conservatives when, as expected, he seeks the presidential nomination in three years.
And Democratic Minority Leader Harry Reid also has high stakes. In his first months as leader, the Nevadan has compiled a spotty record of verbal gaffes and parliamentary gambles. But if he is able to turn back Bush and Frist on this giant issue, his stature among his fellow Democrats would be vastly enlarged.
But dwarfing all these individual dramas is the question of what the vote means for the Senate as an institution. Two of the main props of the Senate’s identity are at stake. The tradition of unlimited debate, going back to the Senate’s earliest years, has been maintained through the centuries, with the only ceiling being the one set by its cloture rule – the ability of a supermajority (now 60 votes) to bring debate to a close.
The second prop is the continuity of Senate rules, which carry over automatically from one Congress to the next, unless changed by the prescribed procedure – which requires 67 votes.
For traditionalists, the Frist effort – the so-called nuclear option – is an assault on both these institutional props. That explains why some Republicans with long memories and years of service such as Indiana’s Richard Lugar, a 28-year veteran, have expressed such deep misgivings about the prospect of the “nuclear option.”
However, they are part of a distinct minority on the Republican side. Only 20 of the 55 GOP senators began their service before the Republicans secured a majority in January of 1995. Except for the 18-month hiatus in 2001-02, when a party switch by Vermont’s Jim Jeffords allowed Democrat Tom Daschle to become the majority leader, the other 35 Republicans have never experienced the frustrations of minority status. Nor do they know how important Senate rules have been in protecting the rights of individual senators.
Many of the newer Republican senators moved from the House of Representatives, where there are no permanent rules and where the majority party needs to give minimal consideration to the views of the minority.
That is why you find a sharp generational split among Senate Republicans on the “nuclear option.” John McCain, class of 1987, and Trent Lott, class of 1989, have been at the center of negotiations with Democrats about a possible compromise. Lugar, who is enough of a party loyalist that in the end he may well vote with Frist, nonetheless said he is “opposed to trying to eliminate filibusters, simply because I think they protect minority rights, whether they’re Republicans, Democrats or other people.”
In the end, the outcome may rest in the hands of veterans such as Arlen Specter, class of 1981, and John Warner, class of 1979, who have both been trying desperately to avert the showdown.
Not all the “old bulls” agree. Although their Democratic predecessors often filibustered against civil rights bills, Mississippi Sen. Thad Cochran and Alabama Sen. Richard Shelby both told me they are comfortable ending that tactic when it comes to judgeships.
But I was struck by the comment of Utah’s Robert Bennett, class of 1993, a second-generation senator who learned his love of the institution at his father’s knee. Bennett puts much of the blame for the current crisis on the Democrats, for blocking people like Miguel Estrada, who served with distinction in the Clinton administration Justice Department but nonetheless was filibustered so long that he withdrew as a Bush circuit court nominee.
But Bennett said that, whatever the outcome of this vote, he fears that a sword has been unsheathed now that will forever change the way the Senate operates. “Once we (Republicans) try to change the rules with 51 votes, the precedent is on the table,” he said. “If Hillary Clinton becomes president with a Democratic Senate and wants to appoint Lani Guinier to the Supreme Court, Harry Reid could make that happen with 51 votes.”
That is a thought for Republicans to ponder.
David Broder is a Washington Post columnist. Contact him by writing to davidbroder@washpost.com.
Charles Krauthammer, whose column normally appears on Friday, is on vacation this week.
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