Senate Scrap Over Judges Is Frist’s Fight

Times Staff Writer

When the dust clears after a Senate Judiciary Committee hearing today, all eyes on Capitol Hill will turn to the Senate’s relatively new majority leader and nascent presidential candidate: Bill Frist of Tennessee.

It is Frist who will decide whether and when Senate Republicans will seek a rule change to prevent Democrats from using the filibuster to block federal judicial nominees -- a move so politically explosive it has been dubbed the “nuclear option.”

And as both sides calculate the political risks and benefits of the battle over judges, they are focused not just on the merits of the debate but on Frist’s presidential prospects.

“The first, second and third factor for Bill Frist is his presidential aspiration,” said Marshall Wittmann, a former aide to Sen. John McCain (R-Ariz.).

Wittmann, who works for the Democratic Leadership Council, a centrist party group, thinks Frist has little choice. “He has to pull the trigger [on the filibuster fight]. He cannot back down or he will be viewed as a wimp by the Republican right.”


The battle lines for the confrontation will be largely set after today, when the Judiciary Committee is expected to vote to send two of President Bush’s more controversial nominees for the federal bench to the Senate floor for confirmation. California Supreme Court Justice Janice Rogers Brown and Texas Supreme Court Justice Priscilla R. Owen have been previously filibustered by Democrats. And party leaders have signaled they will try to block them again.

Frist will in effect sound the battle horn as soon as he puts one of them on the schedule for debate. Before that, he is expected to make an overture to Democrats -- a kind of “one last chance” for peace. But neither side expects he can offer a gesture acceptable to Democrats.

It takes 60 votes to break a filibuster, meaning a minority of 41 senators can block a vote on an issue they expect to lose. In recent years, Democrats have drawn on the filibuster to block 10 of Bush’s 205 judicial nominees.

Democrats, who have 44 members in the Senate, say the filibuster is a fundamentally important check on the “tyranny of the majority,” and changing it would alter the character of the Senate in ways that violate the spirit of the Constitution.

Republicans say prohibiting the use of the filibuster for federal judges would be consistent with the constitutional requirement that the Senate provide advice and consent on presidential nominations. They argue that it means nominees should rise or fall on a simple majority vote, without being thwarted by a filibuster.

Behind the debate is anger among many conservative Republicans over what they see as the activism of federal judges in social and religious matters.

These conservatives have become a crucial organizing force for Republicans in elections, and they have put Frist on notice that his presidential prospects may rest on how well he fights for their cause.

“If he fails and the Democrats succeed in blocking the Bush judges, including ultimately a Supreme Court nominee ... then Bill Frist need not come calling at the conservatives’ door in 2008,” Richard Lessner, executive director of the American Conservative Union, wrote this month in the conservative newspaper Human Events.

“On this issue conservatives are not in a mood to be forgiving. It’s show time and Bill Frist must deliver,” Lessner said.

Strategists say social conservatives don’t fully trust Frist and are more favorably inclined toward three GOP Senate colleagues seen as potential presidential contenders: Rick Santorum of Pennsylvania, Sam Brownback of Kansas and George Allen of Virginia.

“Frist is hearing footsteps, and they are the footsteps of Brownback, Santorum and Allen,” Wittmann said.

Frist’s aides deny that his presidential aspirations are influencing his decisions in the dispute over judicial filibusters.

“People can’t believe it, but it’s a simple fact -- he is focused on being majority leader,” said Frist’s chief of staff, Eric Ueland. “He has a once-in-a-lifetime opportunity to serve in that position, and what happens in the future happens in the future.”

But few in either party take such comments at face value, in part because Frist has taken several early steps to prepare for a presidential run. He formed a political action committee in Tennessee, began to put together a campaign team and paid visits to the key primary state of New Hampshire. He said he would not run for reelection to the Senate in 2006, ensuring that he would have two years to work full time on the 2008 presidential race.

This weekend, he is scheduled to deliver a videotaped speech to the Family Research Council Action, an organization of Christian activists that has scheduled a simulcast to oppose the Democrats’ “unprecedented filibuster of people of faith” who Bush has picked for federal judgeships.

The group’s president, Tony Perkins, said in a letter to members that Frist was “committed to returning Constitutional order to the Senate by requiring an up-or-down vote on these nominees. To do this, he urgently needs the help of every ‘values voter.’ ”

Prevailing in the fight over the filibuster is not without risks for Frist.

“If Frist thinks doing this is going to make him the first choice of cultural and social conservatives, he’s wrong,” said Charles Cook, an independent political analyst. “His natural constituency is country club Republicans who are put off by what he’s doing. And I think he’s driving his campaign into the ground.”

Cook agreed with others that Frist had left himself little alternative except to proceed with the nuclear option, but that he should be careful about timing.

“Republican strategists are privately saying it’s a really terrible idea to pull the trigger right now,” Cook said. “If you are going to pull the trigger, you need to wait until the dust settles a bit.”

Frist appears to be keeping his options open, sending different signals to different audiences.

During his trip to Rome to attend the funeral of Pope John Paul II, he told some colleagues that if he had to pull the trigger, he would rather do it sooner than later. But his staff has been indicating that the issue is not going to come to a head for at least a few more weeks.

“Sen. Frist has said he will be making an offer to [Minority Leader] Sen. [Harry] Reid, and we expect that to come in the next few weeks,” Frist spokesman Robert Stevenson said Wednesday.

Democrats are taking no chances. “We’re assuming [the filibuster fight] could come at any time,” one top Democratic aide said.

For weeks, Frist has been organizing the battlefield. The last piece he needs on the board is a judicial nominee who, from his viewpoint, would best spotlight the filibuster issue. That’s the role either Brown or Owen could play.

Both are denounced by Democrats as extremists.

They view Brown as a conservative ideologue who frequently sides with business and property owners against consumers and individuals.

Democrats raise questions about Owen’s stand on abortion, accusing her of improperly imposing barriers on minors seeking an abortion without parental notification.

Both are popular with conservatives. Brown is African American, and Republicans say privately that they relish the idea of doing battle with Democrats over a minority nominee.

The final calculation is whether Frist has the 51 votes he needs to institute a rule change. The tallies by Senate insiders are close -- within one or two votes on either side.

The looming question is whether he’s willing to bet his political future on such a narrow margin.

“I think he has to do it in the next couple of weeks -- I don’t think he can wait,” Wittmann said. “But if he does fail on this, it will set him back.”