Reading Room
Domenici Boosts Republican Odds of Success on Judges
By Alan K. Ota
Congressional Quarterly
March 2, 2005
Senate Republicans appear to be closing ranks behind Majority Leader Bill Frist on the sensitive subject of using the "nuclear option" to stop Democratic filibusters of judicial nominees. On Wednesday, Sen. Pete V. Domenici, R-N.M., an influential senior lawmaker, came out firmly behind Frist's efforts. Domenici's declaration helped give Rules Committee Chairman Trent Lott - Frist's point man on the issue - the confidence to declare that the majority party has enough votes to force the president's nominees to the floor for up-or-down votes.
Lott, R-Miss., said he had picked up another GOP supporter, in addition to Domenici, after a luncheon meeting of senior Republicans. But Lott would not give names, so it was impossible to verify his whip count. "You never know for sure, until you have the vote," Lott said. "But I'm comfortable in saying we have at least 50" senators willing to support Frist on a procedural vote that would clear the way for the confirmation of judges on a simple majority vote.
Republicans refer to that as the "constitutional option" - an approach that mirrors efforts by senators in prior years to assert their right under the Constitution to establish procedures for a new session of Congress. Democrats deride such efforts as the "nuclear option," and warn that they could retaliate with maneuvers that would effectively shut down floor action on all sorts of bills. For weeks, lawmakers in both parties have said they were unsure whether Frist would have the support of enough members of his caucus to pursue his tough anti-filibusters strategy on the Senate floor. "Senator Lott is doing what he does best, whipping votes. He's the only one who knows whether the nuclear option is viable," said a senior Senate aide. "Oh, it's viable all right,'' Lott said, pulling from the breast pocket of his sportcoat a typed list of senators' names marked up with notations in ink and red marker.
Olympia J. Snowe, R-Maine, and Lincoln Chafee, R-Maine, have said they will oppose the use of measures to cut off Democratic filibusters by majority vote.
And publicly, a number of Republicans say they remain undecided on whether they will support Frist in a showdown on judges. Those included John W. Warner of Virginia, Susan Collins of Maine and Pat Roberts of Kansas. But Lott says that he expects a number of undecideds to swing behind Frist if it should come to a floor fight.
And several Republicans said there was a groundswell of support for Frist within the caucus after Democrats attacked William G. Myers III, a nominee for the U.S. Court of Appeals for the 9th Circuit, in a Senate hearing on Tuesday. Democrats sharply criticized Myers' record on environmental issues as a former top lawyer for the Interior Department. Domenici said his resolve on the issue was set by the criticism of Myers and the harsh condemnation of the GOP by Sen. Robert C. Byrd, D-W.Va. "I'm going to vote with Frist,'' Domenici said. In a floor speech Tuesday, Byrd had invoked the name of Adolf Hitler in complaining about the prospect of a Senate rule change.
Democrats say they believe a showdown will come in April or May. Republicans have declined to say when they plan to schedule floor votes for any of the seven recently renominated judicial candidates that were blocked by filibusters in the 108th Congress. A senior Senate floor aide said the first contested judicial nominee might go to the floor after the Senate finishes work on an $81.9 billion supplemental spending bill for the military in early April. Both Frist and Lott are under pressure from business lobbyists who fear Republicans may sacrifice too much of the GOP agenda if the push to save conservative judges impedes action on other legislation. Whether Republicans have the votes or not, Patrick J. Leahy, D-Vermont, said he doubted Frist would try to shut off Democratic filibusters of judges.
"Why would they want that to be their mark in history?" he asked. "We'll see. . . . It would make my life easier because nothing else would happen for the rest of the year." Lott has become a key strategist in the fight over judges. "He's a major player in determining and implementing the strategy for getting an up-or-down vote on judges," Frist said. Sen. Dianne Feinstein, D-Calif., called on Lott to vet his procedural ideas in public. "We should have very serious hearings on the history of the use of the filibuster," she said. "I think the American people ought to weigh in here. They've got to understand what's at stake."
Ready to Act
Lott said he did not believe further hearings were needed by his committee. He said that the proposals for ending filibusters of judicial nominees had been discussed in his committee during the 108th Congress, and would likely be debated at length on the Senate floor in coming weeks. Frist's filibuster-ending plan was devised by a number of advisers, including Orrin G. Hatch, R-Utah, the former Judiciary Committee chairman.
Under that scenario, Republicans would try to assert the right of a majority of senators at the start of a new Congress to set aside permanent rules of the Senate and establish their own procedures for running a new session of the chamber. If Democrats raised a point of order or challenged a ruling of the chair - a matter that would be settled by simple majority vote - Lott says he now has solid support from more than 50 Republicans to uphold the GOP's position.
If Republicans defeat the Democratic challenge, John Cornyn, R-Texas, said Republicans then would be able to move immediately to confirm one, or perhaps a series of judicial nominees on simple majority votes. Or Republicans might decide to pause to give Lott time to negotiate a deal on a formal change in the Senate's permanent rules. The advantage of striking a deal on the rule change would be to avert further changes in Senate procedures by simple majority votes in the 109th Congress, or in future sessions. Feinstein said "it would be the end of the Senate as we know it," if Republicans changed the rules to prohibit the filibuster of judicial nominees. But Lott envisions fast-paced negotiations and an orderly outcome.
There is one case in which the Senate forced a vote on a rules change with only a simple majority. In 1975 the Senate adopted the current rule requiring 60 votes for cutting off debate on any motion except a rules change. That 60-vote rule, which remains in place today, is at the core of the current fight over judicial nominations. Proponents of the rules change in 1975 argued that the Constitution prohibits more than a simple majority from blocking a change in the rules. Vice President Nelson A. Rockefeller, presiding over the Senate, agreed. Majority Leader Mike Mansfield, D-Mont., raised a point of order against Rockefeller's ruling and Walter F. Mondale, D-Minn., moved to table Mansfield's objection.
Rockefeller ruled that the tabling motion, which prevailed on a 51-42 vote, meant the Senate had agreed with the constitutional argument and that the filibuster could be ended with a simple majority.
With that vote, the success of the rules change was guaranteed.
