Why Senate Is Taking Filibusters to the Mat

Times Staff Writer

Welcome to May Madness, Washington style.

The Senate is careening toward a showdown over federal judges that poses enormous political risks for Republicans and Democrats. But neither side seems willing or able to stop it.

The fight over President Bush’s controversial judicial nominees threatens to paralyze the Senate. Unless someone blinks, it could be a defining political moment on par with the 1995-1996 federal government shutdown.

Both sides have reason to fear the fight will reinforce negative images of their party: Republicans as ideologues who care more about appeasing their conservative base than about governing; Democrats as obstructionists who have no constructive policy alternatives.


But in the current political environment, the collision increasingly seems unavoidable -- and could happen as soon as this week. At issue is the GOP’s threat to ban a senator’s right to filibuster judicial nominations, which would be a rare change in Senate rules that Democrats and some Republicans have dubbed the “nuclear option.”

If the rule change passes, Democrats have said they would retaliate by hobbling the ability of Senate Republicans to advance major initiatives, such as Bush’s energy policy or limits on some types of lawsuits.

Republicans are pressing to bar the filibuster for judicial nominees -- and Democrats are warning they will have a tough response if that happens -- because of the key decisions federal judges make on politically charged issues such as gay rights, abortion limits and religion in public places. Republicans fervently want Bush’s more conservative choices to join the federal bench, and Democrats are just as determined to keep them off.

Still, both sides are plotting their strategies in the dispute with trepidation because of the prospect of a Senate meltdown if the GOP wins the filibuster battle.

“There’s a risk for Republicans of not getting things done, when part of their strategy is to prove they can govern,” said Dan Meyer, who was chief of staff to then-House Speaker Newt Gingrich (R-Ga) during the 1995-1996 budget battle with President Clinton that led to the partial government shutdown. “But on the Democrats’ side ... they run the risk Republicans ran 10 years ago of grinding the joint to a stop. That doesn’t play well.”

Some Senate strategists say there remains a slender chance an agreement can be reached that avoids a faceoff. But so far, both sides are gearing up for a fight.

Democrats and Republicans in recent weeks have rejected each other’s efforts at compromise. While senators were in their home states during last week’s recess, partisans aired radio and television advertisements and mobilized activists to pressure uncommitted lawmakers. House and Senate GOP leaders have begun planning for running Congress in what they call the “post-nuclear” environment.

For now, the betting is that the battle over judges will be joined soon. “We’re getting close to the time when the question will be called,” said Eric Ueland, chief of staff for Senate Majority Leader Bill Frist (R-Tenn.).

Paradoxically, this struggle and its potentially dire consequences involves an issue polls find is of less concern to most voters than such kitchen-table matters as healthcare and higher gas prices.

“The issues important inside the Beltway are different from those outside the Beltway,” said Randy Bumps, chairman of the Maine Republican Party.

That disconnect between Congress and the country speaks volumes about the forces driving American politics. Both parties tend to give high priority to issues that matter most to their core supporters, even if they are low priorities for -- or unpopular with -- the public at large.

So, for example, Republicans in March jammed through legislation to aid Terri Schiavo, the brain-damaged Florida woman whose husband wanted to remove the feeding tube that was keeping her alive. It was a cause celebre for evangelicals and antiabortion activists who had become increasingly influential within the GOP. But polls found that the general public, by wide margins, believed that Congress’ action was inappropriate.

Similarly, in 2004, Senate GOP leaders unsuccessfully pushed for a constitutional amendment to ban gay marriage -- an issue of much greater interest to activists on the left and the right than it was to the public at large.

In the judicial fight, a recent Washington Post/ABC News poll found that 66% opposed the Republican effort to change filibuster rules for judicial nominees. But the effort -- widely seen as a warmup for a fight over filling a possible Supreme Court vacancy this year -- is a matter of intense interest to religious conservatives who believe the judicial system has undermined traditional values.

The issue also looms large for the Democrats’ liberal allies, who see the court system as a crucial safeguard for individual rights that they think would be undermined by the disputed nominees.

It is the ideological commitment of outside groups -- liberal and conservative -- that is exerting the heaviest pressure on leaders of both parties not to compromise.

When Senate Democratic Leader Harry Reid of Nevada recently unveiled a proposal that would allow a vote on some, but not all, of Bush’s stalled nominees, activists on both sides howled. Conservatives want a vote on each one; liberals want none of them on the bench.

The controversy over judges has been building for more than two years, as Democratic filibuster threats have prevented the Senate from voting on 10 of Bush’s nominees to federal appeals courts. Earlier this year, the president resubmitted seven of the nominees.

Critics of the nominees have argued that they were outside the legal mainstream and that Democrats were within their rights to use the same stalling tactics commonplace in debates on legislation. And though Democrats blocked votes on the 10 appeals court nominees, 204 other Bush judicial nominees won Senate approval -- including 35 to appeals courts.

Republicans argue that it is unfair to prevent an up-or-down vote on nominees who may have the support of a majority of the 100 senators but are blocked because it takes 60 votes to cut off a filibuster.

Frist has threatened to circumvent Democratic filibusters with a parliamentary maneuver that could be hard to follow for the average C-SPAN viewer of Senate floor proceedings.

It would begin with him calling up one of two controversial judicial nominees recently approved by the Senate Judiciary Committee -- California Supreme Court Justice Janice Rogers Brown or Texas Supreme Court Justice Priscilla R. Owen. It probably would end with a suspenseful roll call vote, with Vice President Dick Cheney making a rare appearance as presiding officer, on a motion that would effectively establish a new rule against filibustering judicial nominees.

That would clear the way for confirmation of Bush’s contested nominees with a 51-vote simple majority.

Although Senate Majority Whip Mitch McConnell (R-Ky.) said he was certain that Republicans would have enough votes to pass that rule change, others were not so sure. A handful of Republican senators -- enough to determine the outcome -- have said they oppose changing the rules or have been unwilling to state their position publicly.

If Frist prevails, Democrats have threatened retaliatory tactics that would transform the Senate from a place that runs largely on courtesy and consensus into a contentious institution where little would come easily.

Democrats, fearing the kind of public backlash that Gingrich met after the public concluded Republicans were responsible for the mid-1990s government shutdown, have insisted that they do not intend to thwart all Senate action. They say they would not interfere with legislation vital to national security and other “critical government services.”

But the retaliation they describe would make it extremely difficult for Republicans to conduct other legislative business. The Democrats, for example, have said they would demand strict enforcement of rules requiring every bill and amendment be read out loud -- a requirement routinely waived by unanimous consent. Other delaying tactics could include offering motions to adjourn or calling for time-consuming roll call votes on routine matters.

“Senators will spend more time at their desks, more time on the floor, more time in session,” Senate Minority Whip Richard J. Durbin (D-Ill.) said recently on CBS’s “Meet the Press.” “Long bills that used to skate through without being read will be read.”

Democrats also have prepared for the “post-nuclear” Senate by introducing several bills reflecting their priorities -- such as increasing the minimum wage. They plan to divert the Senate from Republican-backed bills by demanding that their measures be brought up.

The big question is whether Democrats, if they lose the fight over the filibuster, will have the political stamina to sustain those disruptive tactics. Republicans are gambling that they will not.

And if Democrats do stick with it, they could pay a price in the 2006 elections, Republicans say. GOP leaders note that in the aftermath of the government shutdown, their party lost three House seats in the 1996 vote -- an election they expected would deliver gains.

Still, some Republicans fear their party would be blamed for a stalled Senate.

“To the extent that government is dysfunctional, it has proven in the past to work to the disadvantage of those perceived to be in control,” said Meyer, the former Gingrich aide.

Other Republicans are growing anxious about the legislative initiatives that could be at risk, such as Bush’s push to establish a new national energy policy.

“There are other things that need to be done” aside from banning the filibuster for judicial nominees, said a senior Republican Senate aide who spoke on condition of anonymity because he was expressing a dissenting view. “There are those who have been around here a long time who are saying, ‘Don’t we have better things to be doing right now?’ ”