- The Washington Times - Saturday, March 25, 2006

The party occupying the White House normally suffers significant losses in the Senate during the midterm election following a president’s re-election. In the nine such elections dating from 1918 (the midterm during Woodrow Wilson’s second term) through 1998 (the midterm during Bill Clinton’s second term), the average gain for the party out of power has been just below six seats, which happens to be the Democrats’ magic number in 2006.

As we note above, Democrats face an uphill battle to recapture control of the Senate. If, however, Democrats do win a Senate majority in November, the consequences for the Bush administration and the judiciary would be profound. Not only would Democrats control the chairmanships of all Senate committees and subcommittees, but they would also wield subpoena power, which their minority-party status has precluded them from exercising since the Iraq war began, during the aftermath of Hurricane Katrina and following December’s revelation of warrantless wiretapping by the National Security Agency. Given the immense stakes involved, notwithstanding the low probability of a Democratic takeover, it is worth reviewing how the committee chairmanships would be affected.

Vermont Sen. Patrick Leahy would return as chairman of the Judiciary Committee, where he spent 18 months bottling up dozens of judicial nominations in 2001 and 2002, including key appellate-court appointments. Altogether, 28 judicial nominees failed to get votes in Mr. Leahy’s committee. Recall that Democrats did not begin filibustering appellate-court nominees until 2003, after Republicans regained control of the Senate and its Judiciary Committee in the 2002 elections.

Refusing to hold hearings or conduct committee votes, which were common strategies then-Chairman Leahy used during 2001 and 2002, precluded the need for filibustering on the floor. Surely, Mr. Leahy would once again exploit the opportunity to use these relatively stealthy tactics to steamroll dozens of President Bush’s judicial nominations. (During the final two years of the Clinton presidency, the Republican-controlled Senate declined to vote on 40 judicial nominations.) On the judicial front, it must be noted, after capturing eight seats in the 1986 midterm election and establishing a comfortable 55-45 majority, the Democrat-controlled Senate defeated Judge Robert Bork’s nomination to the Supreme Court in 1987.

Sen. Robert Byrd would reclaim the chairmanship of the Appropriations Committee. He would exercise significantly more oversight involving Iraq war funding, particularly relating to the administration’s tendency to regularly finance military operations through supplemental emergency appropriations.

Self-styled deficit hawk Kent Conrad of North Dakota would become chairman of the Budget Committee. The president could forget about the use of the reconciliation process, which requires only a simple majority vote (rather than the 60 votes frequently needed in the Senate), in order to extend controversial tax cuts beyond their expiration dates in 2008 and 2010. Mr. Conrad would also likely spearhead the implementation of some form of pay-as-you-go rules for tax cuts in general. Montana’s Max Baucus, who voted for the 2001 tax cuts but opposed the 2003 dividend and capital-gains tax cuts, would become chairman of the Finance Committee, where he would be in a position to stop any renewed effort to privatize Social Security.

At the Environment and Public Works Committee, Democratic Sen. Barbara Boxer of California would replace Republican Sen. James Inhofe of Oklahoma as chairman. Enough said. The same rhetorical restraint applies to the Health, Education, Labor and Pensions Committee, where Edward Kennedy, Massachusetts Democrat, would replace Mike Enzi, Republican of Wyoming.

At the Armed Services Committee, Chairman John Warner, who served as undersecretary and secretary of the Navy (1969-1974), would be replaced by Michigan’s Carl Levin, who opposed the use of military force against Saddam Hussein not only in 2002 but in 1991 as well. At the Foreign Relations Committee, Delaware’s Joe Biden would use his perch as chairman to seek the Democratic presidential nomination, just as he used his position as Judiciary Committee chairman in 1987 (recall the defeat of the Bork nomination) in his ill-fated campaign for his party’s 1988 nomination.

For the Bush administration, a Democratic Senate would be very, very bad news. Fortunately, it will be an uphill struggle for liberals.

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