- The Washington Times - Sunday, June 19, 2005

When the “Gang of 14” agreed last month to oppose Senate Majority Leader Bill Frist’s attempt to prohibit use of filibusters to block President Bush’s judicial nominees, it was seen by many as a big victory for the Democrats.

But several weeks later, following the swift confirmation of a half-dozen or more of Mr. Bush’s long-delayed judicial appointments (a number that could grow to 10 or more in the weeks to come), Mr. Frist is now seen as the victor in the GOP’s battle to put more conservative jurists on the bench, and the liberal Democrats are emerging as the losers.

As this is written, Judiciary Committee Chairman Arlen Specter and Mr. Frist had moved six of Mr. Bush’s nominees swiftly through the Senate. Two more, Terrence Boyle in the U.S. 4th Circuit Court of Appeals and Brett Kavanaugh to be placed on the Circuit Court in the District of Columbia, were scheduled to be taken up late last week.

Several other nominees were awaiting votes before the July Fourth recess. “We’re going to keep pushing them through as fast as we can,” a Senate majority leadership staffer told me.

Democratic leaders who wanted to preserve their use (abuse would be more accurate) of the Senate’s unlimited debate rule to kill Mr. Bush’s Appeals Court nominees, spun the story as an abject defeat for Mr. Frist and the White House. They had preserved their use of the filibuster in judicial fights, which is what they really wanted after all, they said.

Many conservatives, too, saw the deal as a betrayal by the seven GOP senators who signed onto the agreement to break the logjam and prevent a vote on Mr. Frist’s motion. But a different picture is coming into focus. Mr. Bush is putting a bunch of very conservative judges on the Appeals Courts and changing the complexion of the nation’s judiciary.

Mr. Frist believed he had a simple majority of 50 plus one (Vice President Dick Cheney) to get his motion approved, but the gang of 14 (half of them Democrats and half Republicans) agreed to stand together, opposing the rules change, but also agreeing an undetermined number of nominees should get an up-or-down vote.

That robbed Mr. Frist of seven votes and killed any chance of his motion being approved at that point, though it remains at the Senate clerk’s desk, ready to be called up at a moment’s notice. But it cost Democratic Leader Harry Reid much more — seven crucial votes needed to uphold his party’s filibuster. Mr. Reid, from any point of view, lost more in this tradeoff.

The reason: The deal worked out with the seven Democrats who signed on to it committed them to opposing the filibuster except in what they termed “extraordinary” circumstances. That has opened the judicial floodgates in the Senate, as one by one they have been approved, often by large majorities.

Last week the Senate easily confirmed Thomas Griffith to the District of Columbia Circuit Court of Appeals, with 20 Democrats joining Republicans for the 73-24 vote.

Earlier, the Senate in rapid succession cleared five nominees that the Democrats once vowed would never see the light of day: Priscilla Owen, Janice Rogers Brown, William Prior, Richard Griffin and David McKeague.

None of this would have happened had Mr. Frist not challenged the filibuster abuse that had tied up the Senate in knots. It was the threat of losing a key weapon in parliamentary tactics that forced seven Democrats to cave in and agree to give Mr. Bush’s nominees the votes they deserved.

And that motion remains a real threat if Democrats try to stall future judicial nominees. Not only is Mr. Frist’s so-called “nuclear option” still at the desk, ready to be ignited, but two of the seven Republicans, Mike DeWine of Ohio and Lindsey Graham of South Carolina, have said they will vote to approve it if the Democrats resume their filibuster war. They would give Mr. Frist the votes he would need to forever end the filibuster’s use in judicial politics.

This emerges as a much more pivotal weapon in the Supreme Court battles to come, one the Democrats fear more than anything else. And many believe this is what this fight was really all about anyway, a test run for the coming debate over the next high court vacancy, perhaps later this year.

Parliamentary battles can be complicated, and sometimes it isn’t always clear who won a rules struggle until the smoke clears and regular order is restored. Last week, it became very clear who won and who lost.

Mr. Bush was putting a bunch of his previously filibustered nominees on the federal bench. Mr. Frist had forced a key bloc of Democrats to back down in the face of his threats to prohibit judicial filibusters, making him a majority leader to be reckoned with. The federal judiciary was being redirected in a much more conservative direction.

Who says nothing is getting done in Congress?

Donald Lambro, chief political correspondent of The Washington Times, is a nationally syndicated columnist.

Copyright © 2018 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide