As befits his title, Senate Majority Leader Bill Frist (R-Tenn.) said Friday that he favors majority rule when it comes to voting on President Bush’s judges -- but he proposed a Senate rule change to end filibustering that his aides said needs the support of the minority Democrats.
It takes two-thirds of the lawmakers -- or 67 votes -- to change the rules of the Senate.
At issue in the fight over judges is Rule XXII, which requires three-fifths of the Senate, or 60 votes, to cut off debate.
This year, the Democratic minority has used that rule to block a final confirmation vote on two of Bush’s judicial nominees: Washington attorney Miguel A. Estrada, who would serve on the U.S. appeals court in the District of Columbia, and Texas state Justice Priscilla Owen, who would be seated on the U.S. 5th Circuit Court of Appeals in New Orleans.
There are 48 Democrats in the Senate, and all but two of them have voted “no” when the Republicans moved to cut off the debate on Estrada and Owen. Their refusal keeps the debate open and prevents a final vote.
The tactic of filibustering has a long and inglorious history in the Senate. During the 1950s and early 1960s, Southern senators, led by Richard Russell of Georgia, used the filibuster to block civil rights laws.
The Civil Rights Act of 1964 won passage only after 67 senators voted to cut off debate. In 1975, the Senate adopted the current rule.
Frustrated by the filibusters of Estrada and Owen -- and aware that the Democrats could use the same tactic in any upcoming fight over the U.S. Supreme Court -- Frist proposed a rule change Friday.
“The remedy is filibuster reform,” Frist said. “No longer will it be necessary to overcome a 60-vote barrier before senators can exercise their power to consent to a nomination.
“Under my proposal, further cloture motions will require a majority of all senators present and voting,” he said.
Frist said Democrats such as Sens. Tom Harkin of Iowa and Joseph I. Lieberman of Connecticut made similar proposals in the past, and he urged them to support his plan.
But Senate aides, including staffers for Frist, said his rule change would need the approval of 67 senators.
That means Frist would need the votes of more than a dozen Democrats who have been voting for the current filibusters.
Senate Minority Leader Tom Daschle (D-S.D.) immediately rejected the idea. He also rejected the Republican claim that the confirmation system was broken, since 124 of Bush’s judges have won confirmation in two years.
“If it ain’t broke, don’t fix it,” Daschle said.
If Frist’s plan fails, Republicans have been discussing what they have referred to as the “nuclear option.”
Under this proposal, the Senate’s presiding officer -- possibly Vice President Dick Cheney -- would hand down a parliamentary rule that Senate Rule XXII did not apply to the president’s nomination, only to legislation.
Then, under this plan, the Democrats would need a majority vote to reverse the chair’s ruling. This probably would fail, and thereby clear the way for Bush’s nominees to win on a majority vote.
Sen. Arlen Specter (R-Pa.) said he had been opposed to the “nuclear option” because it would mean a drastic change in the how the Senate operates.
“But this [battle over the judges] has escalated and escalated further, and I’m thinking about it now,” he said.
However, Republican staffers cautioned that no plan is in the works to use the parliamentary maneuver to change the filibuster rule.
Two years ago, the president made his first 11 nominations to the U.S. appeals court, and eight of them have won confirmation.
At a White House ceremony Friday, Bush criticized the “obstructionist policies” of the senators who have blocked votes on the other three. Besides Estrada and Owen, the third nominee is U.S. District Judge Terry Boyle of North Carolina, a protege of former Sen. Jesse Helms.
“As of today, three of that original group have waited two years,” Bush said.
“Their treatment by a group of senators is a disgrace. While senators stall and hold on to old grudges, American justice is suffering.”