Senate Primed for Filibuster Showdown

Times Staff Writer

After months of taunts and threats, Republicans and Democrats are preparing to escalate a conflict over what each side describes as the “nuclear option” -- changing the rules for confirming federal judges.

The countdown begins today when members of Congress return from a two-week spring break. According to some scenarios, it could reach legislative Armageddon by the end of the month.

For the record:

12:00 a.m. April 29, 2005 For The Record
Los Angeles Times Friday April 29, 2005 Home Edition Main News Part A Page 2 National Desk 2 inches; 98 words Type of Material: Correction
Judicial filibusters -- An article in Section A on April 4 about the conflict in Congress over judicial filibusters quoted Sen. Orrin G. Hatch (R-Utah) as saying that the filibusters “are the first filibusters in history over judicial nominees.” Republicans filibustered the 1968 nomination of Abe Fortas to be the Supreme Court chief justice, but party leaders now dispute that the action was a “true filibuster.” A vote to end debate and send the nomination to the Senate floor failed to win even a simple majority, indicating the Fortas confirmation was doomed. President Johnson then withdrew the nomination.

At issue is whether Senate procedures will be altered so that Democrats can no longer use the most effective parliamentary weapon in their arsenal -- the filibuster -- to block votes on controversial nominees to the federal bench. The decision on when -- or if -- the battle begins rests with Senate Majority Leader Bill Frist (R-Tenn.).


Cooler heads on both sides warn of the potential fallout: partisan warfare on a scale not seen since the government shutdown in the mid-1990s.

Democrats say removing the filibuster for judicial nominations would change the fundamental character of the Senate as designed by the Founding Fathers. In retaliation, they have threatened to grind Congress to a halt in all but its most essential functions.

Frist has offered to talk to Minority Leader Harry Reid (D-Nev.) about possible compromises, but neither side -- nor the political interest groups backing them -- holds out much hope of a deal to defuse the confrontation.

“No, I don’t see any potential compromises,” said Nan Aron, president of the Alliance for Justice, a liberal lobbying group that focuses on the court system. “Judges are too important. They serve for life.”

“It’s a train bearing down at everybody,” said David Keene, chairman of the American Conservative Union, a lobbying group. “Everyone can see it coming, but it’s hard to get out of the way because each side has too much at stake.”

Republicans say the fault for the conflict lies with Democrats for having filibustered 10 judges President Bush nominated to the federal bench during his first term.

“The difference now is that these are the first filibusters in history over judicial nominees,” said Sen. Orrin G. Hatch (R-Utah), former chairman of the Judiciary Committee. “That has caused a tremendous amount of animosity.”

Democrats note that most of Bush’s judicial nominees have been confirmed, and say that Republicans have abandoned the long-standing tradition of consulting with the minority party on the more controversial choices.

Judges opposed by the minority party in previous decades often were withdrawn to avoid confrontation.

Democrats were especially angered when Bush took the provocative step this year of renominating seven of the 10 filibustered judges.

“What is driving ... the Senate toward conflict is this White House’s efforts to create unnecessary confrontation over judicial nominees,” said Sen. Patrick J. Leahy (D-Vt.), the ranking Democrat on the Judiciary Committee. “The president insisted on renominating troublesome and divisive choices, rather than working with us to find more consensus nominees who would be fair judges.”

If some hoped emotions would cool during the recess, the controversy over the fate of Terri Schiavo probably made the issue more contentious, both sides say.

Republicans say the battle over the Florida woman’s life proves that the federal court system -- which did not intervene to reconnect her feeding tube -- is broken.

Democrats say it proves that social conservatives are determined to pursue their agenda by any means possible, and that the courts are perhaps the last bulwark against them.

The filibuster -- dramatized in film by Jimmy Stewart in “Mr. Smith Goes to Washington” -- allows senators to debate as long as they like, which effectively allows them to stall a vote they know they will lose.

Originally, a single senator could conduct a filibuster as long as he could keep talking. But current rules make it possible to end one with a vote of 60 senators.

In practice, that means 41 of the chamber’s 100 senators can uphold a filibuster indefinitely. There are 44 Democrats in the Senate, and one independent who usually sides with them.

Republicans want to change the rules so that the Senate would need only a simple majority -- 51 votes -- to end debate and force a vote on a judicial nominee. There are 55 Republicans in the Senate.

Democrats say the filibuster provides protection from “tyranny of the majority.”

They note that the framers of the Constitution intended the House of Representatives to be run by the majority, but specifically designed the Senate as a forum where the minority party and small states would be given greater weight.

Taking away the filibuster, the Democrats argue, would fundamentally alter the character of the Senate and, by extension, the balance between majority rule and minority rights enshrined in the Constitution.

“The whole design was to protect minority interests,” said Sheldon Goldman, a professor of political science and an expert on judicial history at the University of Massachusetts in Amherst. “So what is being proposed now is of immense historical proportions.”

But Republicans argue that Democrats are using the filibuster in a way the framers did not intend -- not to block legislation, but to withhold the “advice and consent” the Constitution requires the Senate to give on presidential nominations to the executive and judicial branches.

“The current Democratic filibusters are not about free speech and extended debate, they are about rejection of nominees with majority support,” said C. Boyden Gray, the former White House counsel to President George H.W. Bush who heads the Coalition for Justice, a conservative lobbying group.

“Any senator is entitled to speak all he wants regarding any nominee,” Gray said. “But once all voices have been heard, Democrats now want the additional right to block nominees from ever getting a final vote.”

Republicans find this especially irksome because they spent so many decades as the minority party. Now, as the majority party under a Republican president, they want to reshape the federal court system to curb what they see as its liberal bias -- especially in decisions on social issues such as school prayer, civil rights and abortion.

Democrats note that most federal judges are Republican nominees -- 55%. The proportion on the Supreme Court is even higher, with seven of nine justices Republican appointees. So Democrats contend that Republicans are not just interested in conservative judges or those with a limited view of judicial power, but judges inclined to be activist in the service of conservative ideology.

“They are seeking to take away the independence of the judiciary -- the crown jewel in our system of government -- so that they can advance their own ideological agenda of the day,” said Sen. Edward M. Kennedy (D-Mass.). “That is exactly the kind of tyranny that our ancestors fought to prevent.”

As the conflict moves toward its endgame, each side is counting votes. There may be 55 Republicans in the Senate, but a handful -- mostly moderates and traditionalists -- have expressed concern that the nuclear option is too drastic and would damage Republicans the next time they were the minority.

Frist needs 51 votes to change the rules to deny Democrats the filibuster. Among the senators believed to be weighing whether to oppose the idea are Lincoln Chafee (R-R.I.), Olympia J. Snowe (R-Maine), Susan Collins (R-Maine), Chuck Hagel (R-Neb.), John McCain (R-Ariz.) and John W. Warner (R-Va.).

Each side also is trying to gauge whether they will be blamed if Republicans overturn the filibuster and Democrats respond by bringing the Senate’s work to a near halt.

Democrats are backtracking somewhat from earlier threats to stall the Senate’s operations, insisting that they will not block bills to support the troops in Iraq or that provide for other crucial government functions.

They are mindful that the public blamed former House Speaker Newt Gingrich (R-Ga.) -- not former President Clinton -- for shutting down the federal government over budget conflicts in 1995.

“Democrats learned their lesson from that and won’t go down that road,” said Jim Manley, spokesman for Minority Leader Reid. “But the Republicans will know the difference between a cooperative minority and an uncooperative minority.”

Republicans are busily trying to lay the groundwork for their case. Frist is expected to spend most of April attempting to highlight what he considers Democratic obstructionism on the judicial issue.

“We will continue to bend over backward and investigate every alley and basement to see if we can work this out with the Democrats,” said Frist spokesman Robert Stevenson.

At the moment, both sides have an interest in appearing stalwart in the hope the other side will blink.

But even privately, it’s hard to find anyone on Capitol Hill who can envision a deal that could defuse the conflict.

“I think we’re going to reach a point where there’s no alternative,” Hatch said.