May 10, 2005
Both Parties Should Halt Before Blowing Up Senate Traditions
By Mort Kondracke

Remember the story about the scorpion and the frog? The frog offers the scorpion a ride across the pond. Midway, the scorpion stings the frog. In one version of the story, as they're both drowning the scorpion explains, "That's the Middle East."

But right now, sadly, the story may apply to the United States Senate.

If cooler heads don't prevail soon, the Senate is going to change radically, giving up its 200-year tradition of extended debate and minority rights to become just a self-important copy of the House of Representatives.

For now, it seems almost inevitable. Senate Republican leaders, who call themselves "conservative," are about to abandon conservatism in the traditional sense - that is, respect for the past and caution in the face of impulse - to ensure victories for their team.

Democrats have been using the filibuster - the minority refuge that requires a super-majority for Senate action - to block President Bush's appeals-court nominees. So now, employing the "nuclear option," Republicans are preparing to stamp out the filibuster.

Republicans say they will change Senate rules only in regard to judicial nominees, not legislation, but, as some conservative critics of the move are warning, it will be only a matter of time until the judicial precedent gets extended across the board.

Senate Majority Leader Bill Frist (R-Tenn.) has already gone so far as to assert - contrary to all history - that Senate rules do not carry over from one Congress to another and that new ones may be established by simple majority rule.

And so, under the "nuclear option," he is about to change Senate rules by simple majority - not two-thirds, as current rules dictate - to establish that judicial nominations should be approved or disapproved by simple majority vote, outlawing the filibuster.

The ploy is "nuclear" because minority Democrats vow to bring Senate business to a virtual halt in retaliation. This may not be much of a loss in the short run - the Democrats have no positive agenda for the country right now - but they will have played their part in destroying Senate traditions that currently protect them.

Democrats are as much the scorpions of the Senate's impending tragedy as are Republicans.

By taking the easy way out and converting a last-resort instrument into a routine device to block Bush's nominees, Democrats have provoked the "nuclear" response.

And, Democrats have the most to lose. If the filibuster ends, the Senate will become like the House, where the majority rules more or less absolutely and the majority party rides roughshod over the minority.

Senate Democrats should look at the pathetic plight of their House colleagues across Capitol Hill to see what the future holds. (Republicans, too, should consider: Someday, this could happen to us.)

Democrats can argue, rightly enough, that filibusters of judicial nominees are not unprecedented. In 1968, the nomination of Supreme Court Justice Abe Fortas to be chief justice definitely was blocked by a filibuster.

In those days, it took 67 votes (later, the rule was changed to 60) to invoke cloture and end debate. Pro-Fortas forces had only 45 votes, and his nomination was promptly withdrawn.

However, it's also true that in all of American history, no Supreme Court nomination had ever been filibustered before.

The Fortas case should show both parties why the filibuster should be available in extraordinary cases. Fortas had flagrantly violated the principle of separation of powers by serving as a virtual White House staff member for President Lyndon Johnson and leaking the contents of confidential Supreme Court deliberations to him.

It also developed that Fortas was having his court salary supplemented by special interests, which ultimately led to his resignation.

But in 1968, Democrats had 62 votes in the Senate. Republicans and Democrats are currently debating whether Fortas did or didn't have the support of a majority of Senators at the time of the filibuster. It doesn't matter. If the Republicans' "nuclear option" goes into effect, a "Fortas" in the future likely will be confirmed.

So, what's to be done to prevent this? There are two options. The less desirable is that Frist can't win the support of 49 fellow Republicans - plus Vice President Cheney as the tie-breaker - and the "nuclear option" fails. Democrats and allied liberal groups figure, right now, that they have the support of three of the six Republicans they need to block nuclear war - Sens. John McCain (Ariz.), Olympia Snowe (Maine) and Lincoln Chafee (R.I.).

Additionally, Sen. Chuck Hagel (Neb.) made some anti-nuclear noises in New Hampshire last week. So the liberals are looking at other moderate Republicans and "institutionalists" for the remaining votes - Sens. Susan Collins (Maine), Arlen Specter (Pa.), John Warner (Va.), Dick Lugar (Ind.), Mike DeWine (Ohio) and John Sununu (N.H.).

Defeat is the less-desirable option because it will encourage Democrats to continue resorting to the filibuster to defeat nominations, rather than making the effort to prove to a majority that any given nominee truly is "extreme."

The better way to avoid nuclear war is a peace agreement, in writing.

Reportedly, Senate Minority Leader Harry Reid (D-Nev.) has floated an agreement, not in writing, to allow votes on some of the seven Bush nominees currently under filibuster threat in return for a nuclear stand-down.

But this offer defeats the very notion that all of the threatened nominees are "extreme." Indeed, the Democrats already have filibustered some nominees - Miguel Estrada and Charles Pickering in the 108th Congress - who were in no way extreme.

The deal should be this: Democrats will permit up-or-down votes on all of Bush's current nominees in return for a written agreement from Frist that first, all judicial nominees will be brought to the floor for debate, answering the Democratic complaint that President Bill Clinton's nominees were routinely bottled up in the Judiciary Committee.

And second, the GOP will abide by the current Senate rule that the rules can be changed only by two-thirds vote and the tradition that Senate rules carry over from one Congress to another.And third, that the filibuster should be preserved as a minority option in "extraordinary circumstances."

It would be ideal if GOP and Democratic leaders reached a pact. But it could be imposed, too, by "institutionalists" of both parties. Indeed, there are rumors of such a deal to deprive the scorpion of its sting.

Mort Kondracke is the Executive Editor of Roll Call.

Send This Article to a Friend