- The Washington Times - Sunday, May 4, 2003

Current Senate rules are hogtying efforts of the Republican majority to confirm two of President Bush’s judicial nominees over Democratic objections.Republicans’ only hope is to convince at least five Democrats to switch their votes, which Republicans say privately is unlikely in the current climate of unyielding partisanship over the judicial nominations.Republicans are discussing several strategies to place pressure on Democrats, such as forcing them to maintain a full-fledged filibuster, but even then Republicans somehow must gain the 60 votes needed to end debate on the nominations of Texas Supreme Court Justice Priscilla Owen and Washington lawyer Miguel Estrada.”We are in this for the long term,” said Sen. John Cornyn, Texas Republican and member of the Judiciary Committee. Mr. Cornyn is working on several plans to smooth the nominating process, but says any changes are not likely to bump loose either of the nominees being filibustered by Democrats.Democrats now are conducting the “filibuster light” permitted under rules revised in recent years that allow Senate business to continue while blocking specific measures. Republicans could force Democrats to begin a full-time filibuster — holding the floor with marathon speeches — creating a huge inconvenience and an ugly public spectacle.”Eventually, the Democrats will really have to filibuster,” said Sen. Kay Bailey Hutchison, Texas Republican. “They’re going to have to talk until they can’t talk anymore.”Today’s filibuster is no longer the great stuff of drama it used to be. In fact, there isn’t even much agreement on what a filibuster is today.”There is no real, official definition of a filibuster,” said Betty Koed, assistant Senate historian.Filibusters — a term derived from the Dutch word for “pirate” — became common in the years leading up to the Civil War as a way to capture the Senate floor and prevent legislative action. By Senate tradition, any senator can hold the floor for as long as he wishes, allowing indefinite debate and thus preventing final action on legislation.The filibuster was so effective that in 1919, the Senate adopted a “cloture” rule that would allow two-thirds of those present to end debate and force a vote by the full Senate.Filibusters were used repeatedly by Southern senators to block civil rights legislation in the 1950s and ‘60s. In 1957, Sen. Strom Thurmond of South Carolina set the record with a filibuster of 24 hours and 18 minutes.Filibustering senators would read extensively from books unrelated to the issue under debate, just to bottleneck action on the floor and prevent the passage of legislation.The two-thirds requirement proved too stiff, making it nearly impossible to invoke cloture.In an effort to further weaken the filibuster, the Senate in 1975 reduced the required number of votes from two-thirds to three-fifths. But the new rule also added a hurdle: the three-fifths no longer applied to just those senators present; it applied to the entire Senate, and 60 votes became the requirement to break any filibuster.That change effectively meant that the filibustering senators no longer needed to hold the floor. What some have called “filibuster light” can be invoked by requiring that a roll call vote be taken to bring a measure to the floor, and then casting more than 40 votes against it.But Republicans still can make life difficult for Democrats by forcing them to attend sessions late into the night.If Republicans choose this option, it will be just as onerous for them as it will be for Democrats. Because of unrelated Senate rules, Republicans would need 51 members — their entire caucus — available to the floor if they wanted to force all Democrats to also be present around the clock for the filibuster.A central concern about that option is the health of several members of the Republican caucus, including Majority Whip Mitch McConnell, Kentucky Republican, and Sen. Pete V. Domenici, New Mexico Republican.Mr. McConnell is recovering from heart surgery in February and Mr. Domenici has been having problems with his hip.

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