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Corupting the Character of the Senate (on fillibusters)

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POLITICS & PEOPLE

By AL HUNT

Corrupting the Character

Of the Senate

Dan Quayle and Walter Mondale have more in common than the vice presidency. Both used to be senators, and in giving the Senate Leader's Lecture Series, worried about the institution ignoring the minority.

The more the Senate rushes to do everything by a simple majority "as the easy way out of sticky situations," Mr. Quayle warned in September 2000, "the more the Senate becomes just another cog in a legislative machine." Two years later Mr. Mondale, in the same series, said he gradually learned the value of extended debate: "Only the Senate can stop the nation in its tracks."

The former Democratic vice president, in an interview this week, emphasized this applies to nominations as well as legislation: "By its very terms, a nomination is not a complete act . . . the Senate is as empowered as the president." Dan Quayle, when the Democrats were in control of the White House, pointedly noted that "advise and consent" does not mean "control and manipulate."

But Senate prerogatives would be brushed aside by GOP leader Bill Frist, prodded by his right-wing caucus including predecessor Trent Lott, to, largely by a party-line fiat, end the right to filibuster judicial nominations. Democrats are blocking two judges. It's a legitimate debate as to whether filibustering judicial nominations is good policy; it wasn't permissible until 1949.

But the efforts to dress this up in constitutional clothing is a fraud; there were no such concerns expressed when the Senate was thwarting Bill Clinton initiatives. The Frist-Lott proposal -- which will be aired before the Senate Rules Committee today -- is a raw power grab.

This ends-justifies-the-means approach disturbs even a few Republicans. New Mexico's Pete Domenici lambasts Democrats for blocking a couple judicial nominations but says "it will be very difficult for me to change the filibuster rule. I always thought the filibuster rule protected the minority." John McCain agrees.

And listen to a bona fide conservative, Mississippi's other senator, Republican Thad Cochran, an ardent supporter of all the Bush judicial nominations. "It's very important that one faction or one party not be able to ride roughshod over the minority and impose its will. The Senate is not the House." He says he flatly opposes changing the filibuster rule.

Bill Frist is pandering to those who have contempt for the Senate and its deliberative (sometimes maddeningly so) role. When some Democrats tried to short-circuit the filibuster rules in 1975 and 1995, they faced opposition from party leaders Mike Mansfield and Tom Daschle. By contrast, Bill Frist is putting politics ahead of principle. His charge the Democrats are engaging in an unprecedented tactic is untrue.

"Each House may determine the Rules of its Proceedingsā€¦"

United States Constitution

Article 1, Section 5

Before the current session, there were 17 other filibusters against judicial nominations, including five Clinton judicial nominations. More than 60 Clinton judicial nominations never were even taken to the Senate floor, often because of objections from a single senator. GOP Judiciary Committee Chairman Orrin Hatch's formula on blocking judges is simple; it's perfectly permissible for one Republican senator to stymie a Democratic nominee but outrageous and unconstitutional for 41 Democrats to block a Republican nominee.

There are several other facts that Sen. Frist and his pals won't tell you: The vacancy rate in the federal judiciary is the lowest since the first Bush administration, 126 judges tapped by George W. Bush have been confirmed, and this president has put more judges on the key circuit courts than Bill Clinton, his father or Ronald Reagan did in a comparable period.

George W. Bush, by all accounts, doesn't care much about the federal judiciary; he has farmed out appointments to the right-wing Federalist Society types. What the current battle is about, both sides acknowledge, is a prelude to any possible Supreme Court nomination.

But the institutional importance is evident in a look at the 1975 fight, when the number of senators required to cut off debate was lowered to 60 from two-thirds. Then-Vice President Nelson Rockefeller initially ruled the issue could be considered by majority vote, not subject to a filibuster, a precedent often cited by the Frist-Lott contingent.

But that ruling, infuriating Senate traditionalists, was overturned. Instead, with Sens. Mansfield and Mondale working with Republicans and Southern Democrats, a careful compromise was fashioned, meeting Thad Cochran's test that any change in fundamental Senate rules requires a "genuine consensus."

By a lopsided margin, debate was cut off and the rules change then was adopted. A majority of Republicans, as well as Southern Democrats, voted for the change, crafted chiefly by Louisiana Sen. Russell Long.

If Sen. Frist can develop a comparable consensus now, it would be widely accepted. But if a Republican majority, with one or two Democrats, tries to ram through a politically expedient dramatic change in the way the Senate does business -- they can claim it's limited to judicial nominations now but a precedent would be set -- it will destroy whatever comity is left in the institution.

Lawmakers should carefully read a letter sent to the Senate this week by Robert Caro, the acclaimed biographer of Lyndon Johnson. "The nation's Founders depended on the Senate's members to stand up to a popular and powerful President," this scholar writes. "In the case of judicial appointments, the Founders specifically mandated the Senate to play an active role." The proposed filibuster changes, he notes, have profound consequences: "Senators should realize that they are dealing not with the particular dispute of the moment, but with the fundamental character of the Senate of the United States, and with the deeper issue of the balance between majority and minority rights."

Ultimately the law of unintended consequences would kick in. One day Democrats will control both the White House and the Senate; these passion-of-the-moment right wingers then would rue the day they brushed aside the Senate's ability to debate, deliberate and delay.

Updated June 5, 2003

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