May 31, 2005

May 31, 2005 | Commentary on

Legislative Lowdown -- Week of May 31st

What exactly did a bipartisan group of 14 senators mean when they agreed last week to filibuster President Bush's judicial nominees only under "extraordinary circumstances"? The agreement itself shed little light on the precise meaning of those two crucial words, saying simply that each senator "must use his or her own discretion and judgment in determining whether such circumstances exist."

At a minimum, the agreement is inherently unstable. At least three Republican signatories-John Warner (Va.), Lindsey Graham (S.C.) and Mike DeWine (Ohio)-have stated publicly that they would support Majority Leader Bill Frist's "constitutional option" prohibiting judicial filibusters (incorporating a long-standing Senate tradition into Senate rules) should their Democrat colleagues in the Gang of 14 participate in what Frist described as "casual" filibusters. Along with the 48 Republicans who appeared ready last week to vote for the option, Frist now appears armed with sufficient votes to prevail on such a motion. The four other Republicans-Lincoln Chafee (R.I.), Susan Collins (Maine), John McCain (Ariz.) and Olympia Snowe (Maine)-are either leaning against or opposed to the option.

Knowing that, the seven Democrats who signed on to the agreement-Ben Nelson (Neb.), Ken Salazar (Colo.), Mark Pryor (Ark.), Mary Landrieu (La.), Robert Byrd (W.Va.), Joe Lieberman (Conn.) and Daniel Inouye (Hawaii)-seem compelled to define "extraordinary circumstances" as narrowly as possible. Otherwise, Frist would simply deploy the constitutional option, thereby depriving Senate Democrats of the ability to obstruct judicial nominations.

Under the terms of the agreement, nominees who have lived lives free of scandal, corruption and criminal activity and who have received the American Bar Association's top rating of "highly qualified" appear to be guaranteed up-or-down votes. Similarly, nominees currently serving on the federal bench whom the President wants to promote to a higher court also appear home free. After all, they survived the Senate confirmation process. Finally, those who have served with distinction on state supreme courts also appear immunized from the "extraordinary circumstances" trap.

Political Problems

Based on Bush's record thus far, the Senate likely will continue to receive the most intellectually credentialed and rigorously screened (i.e., scandal-free) group of judicial nominees ever, forcing Democrats who want to stymie Bush to raise purely ideological objections. Liberal ideological campaigns against principled conservative jurists, however, are inherently unattractive in conservative parts of the country and are likely to pose political problems for at least five of the Democratic signatories. These Democrats represent staunchly conservative "red" states and presumably will want nothing to do with obstructionist filibuster campaigns orchestrated by political figures who are highly unpopular back home, such as Senators Ted Kennedy (Mass.) and Barbara Boxer (Calif.).

According to 2004 exit polls, self-identified conservatives outnumber liberals in Arkansas (Pryor) by the overwhelming margin of 42% to 13%. In Nebraska (Nelson), the conservative advantage is equally daunting: 41% to 13%. In Louisiana (Landrieu), the margin is 40% to 17%, while in Byrd's West Virginia, the conservative advantage is two to one-and growing. Liberals do only slightly better in Colorado (Salazar), but still trail conservatives handily by a margin of 35% to 22%.

Power Shift

Is the emergence of the Gang of 14 a momentous realignment of power in the Senate or a one-time alliance with no staying power and limited effect even on the subject of judicial nominations?

Some, most notably Graham, believe it's the former. The 14-member coalition, he argues, is "the model for the future. . . . I think we have created momentum for the idea that if you constructively engage each other, the political reward is high." Ultimately, Graham believes this bipartisan approach will create "an environment for problem solving" on issues stalled due to seemingly intractable divisions.

No issue pending before Congress requires more "constructive engagement" than the President's push for Social Security reform. Indeed, that's precisely the issue that Graham envisions the coalition's next addressing, warning skeptics to "watch this group of 14 come out with some deal for Social Security." Graham has made it his mission to persuade reluctant Democrats to consider reform options that include the sort of personal retirement accounts proposed by the President.

To prevail, the President will need the support of more than a few Senate Democrats. Interestingly, the names of most of the Democrats in this coalition appear on lists circulating on Capitol Hill of Democrats who might-just might-embrace Bush-style reform. But the risks are high. Conservatives would rigorously oppose any compromise that includes significant increases in the payroll tax, and that's precisely the sort of compromise one would expect to emerge from this group. And Graham himself has said he would be willing to consider a hefty increase in the payroll tax on high-wage workers in order to bring Democrats to the negotiating table. So conservative reformers can be forgiven if they view these discussions with skepticism.

But, ultimately, the risks of not addressing such a foundational issue are equally high. So, my advice is: Go forth and negotiate, but keep your ideological compass close at hand.
 
Mr. Franc, who has held a number of positions on Capitol Hill, is vice president of Government Relations at The Heritage Foundation.

About the Author

Michael Franc Distinguished Fellow
Government Studies

First appeared in Human Events