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GOP May Target Use of Filibuster
Senate Democrats Want To Retain the Right to Block Judicial Nominees

By Helen Dewar and Mike Allen
Washington Post Staff Writers
Monday, December 13, 2004; Page A01

As speculation mounts that Chief Justice William H. Rehnquist will step down from the Supreme Court soon because of thyroid cancer, Senate Republican leaders are preparing for a showdown to keep Democrats from blocking President Bush's judicial nominations, including a replacement for Rehnquist.

Republicans say that Democrats have abused the filibuster by blocking 10 of the president's 229 judicial nominees in his first term -- although confirmation of Bush nominees exceeds in most cases the first-term experience of presidents dating to Ronald Reagan. Describing the filibusters as intolerable, Senate Majority Leader Bill Frist (R-Tenn.) has hinted he may resort to an unusual parliamentary maneuver, dubbed the "nuclear option," to thwart such filibusters.

"One way or another, the filibuster of judicial nominees must end," he said in a speech to the Federalist Society last month, labeling the use of filibusters against judicial nominees a "formula for tyranny by the minority."

So far, at least, Democrats are refusing to forgo filibusters and say they will fight any effort by Frist to act unilaterally to end them for judicial nominations. They warn that it could poison the well for bipartisan cooperation on other issues in the upcoming Congress.

"If they, for whatever reason, decide to do this, it's not only wrong, they will rue the day they did it, because we will do whatever we can do to strike back," incoming Senate Democratic leader Harry M. Reid (Nev.) said last week. "I know procedures around here. And I know that there will still be Senate business conducted. But I will, for lack of a better word, screw things up."

Democrats, however, face several constraints. Democratic strategists said that some of the party's senators from states Bush carried in the presidential election could be reluctant to support a filibuster for fear of being portrayed as obstructionist -- a tactic the GOP used successfully in congressional elections this year and in 2002.

With a Supreme Court nomination, Democrats could be blamed for deadlocking the court at its current four conservatives and four liberals, making it impossible for the court to decide the toughest cases.

White House officials are willing to say little about their Supreme Court strategy and brush off questions by saying simply that Bush will choose the most qualified candidate. But several lawyers and former administration officials who have discussed the issue with West Wing aides said they see indications that Bush is headed toward nominating what one called a "strong ideological conservative" rather than accommodating Democrats with a choice who would be confirmed with little controversy.

One of those signs is that despite Bush's rhetoric about bipartisanship, Democrats say he has done little to reach out to them since his reelection. And some administration officials say they believe any goodwill that was established would quickly evaporate with the president's first Supreme Court nomination.

Several knowledgeable lawyers said the White House has discussed a strategy of explaining a conservative pick by saying that the nominee is of the same stripe as the justice being replaced. "Anybody except for a strong ideological conservative is a waste of a fight," one adviser said. "What they plan to say is that they would not be fundamentally changing the makeup of the court."

Several administration officials said Bush signaled this strategy last month when he nominated White House counsel Alberto R. Gonzales to be attorney general, taking him out of the running for an immediate appointment to the high court. Gonzales would be more likely to be viewed as a centrist pick than some of the other lawyers under consideration. Administration officials said that although Gonzales is likely to be considered for a future seat, the first choice will be someone whom conservatives will embrace immediately.

Scholars agree that a bitter showdown could shatter the fragile comity that is essential for action in the Senate and set a precedent for further erosion of minority party rights in the chamber. "I think we're headed into uncharted waters in terms of the scope of the filibuster and the retaliatory moves that are being contemplated," said Sheldon Goldman of the University of Massachusetts at Amherst, an expert on the judicial nomination process.

At issue is a seldom-used, complicated and highly controversial parliamentary maneuver in which Republicans could seek a ruling from the chamber's presiding officer, presumably Vice President Cheney, that filibusters against judicial nominees are unconstitutional. Under this procedure, it would take only a simple majority or 51 votes to uphold the ruling -- far easier for the 55-member GOP majority to get than the 60 votes needed to break a filibuster or the 67 votes needed to change the rules under normal procedures.

It would then take only 51 votes to confirm a nominee, ensuring approval of most if not all of Bush's choices.

Senate GOP leaders say no final decision has been reached on whether to use this maneuver (which they prefer to call the "constitutional option") and, if so, when. But they have signaled they may do so next year, either shortly after the new Congress convenes in early January or -- more likely, some Republicans say -- after Democrats mount a filibuster against another judicial nominee.

Historically, lawmakers of both parties have engaged in filibusters -- a word derived from the Dutch name for pirates to describe a process of unlimited debate that has been enshrined in the Senate for two centuries -- mostly to block or delay final votes on legislation. But filibusters have also been used against judicial and other nominations, although never in such a systematic manner, Republicans said. In 1968, Republicans filibustered President Lyndon B. Johnson's choice of Supreme Court Justice Abe Fortas to be chief justice, but Johnson withdrew the nomination in the face of Fortas's likely rejection by the Senate.

During Bush's first term, Democrats successfully filibustered 10 of Bush's 52 nominees for appeals courts, while acceding to the confirmation of 35 others. The appeals court confirmation rate was low, but not as low as the rate for President Bill Clinton's second term, Democrats said.

Democrats contend the 10 filibustered judges are too far outside the legal mainstream to warrant lifetime appointments, describing them as the cutting edge of an effort by Bush to pack the courts with ideologically driven conservatives. They also argue that, during the Clinton administration, the GOP majority in the Senate blocked action on dozens of judicial nominations, without need for a filibuster because they could use their majority-party powers to bury nominations in committee or block them through anonymous "holds" on the Senate floor.

Republicans counter that, even though the number of filibustered nominations is small, the Democrats are trampling on the Constitution by denying a straight up-or-down vote for even a single nomination. The Constitution, they note, requires two-thirds majorities for treaties, constitutional amendments and other specific matters but calls for only the "advice and consent" of the Senate on judicial choices, with no reference to any super-majority for confirmation.

Democrats disagree, arguing that the Constitution empowers Congress to set its own rules of operation and does not specify the size of a majority needed for judicial confirmations because the issue was to be left to the Senate to decide. "What about all these people who say they want a literal reading of the Constitution?" asked Charles E. Schumer (D-N.Y.), a member of the Judiciary Committee.

Although frustrated Senate leaders have resorted in the past to tactics involving at least some aspects of the nuclear option, none of the confrontations approached the significance -- or political explosiveness -- of the current dispute, with implications stretching beyond the issue of judicial nominations.

Although it would not directly threaten filibusters on legislative issues, critics believe it could open the door to further erosion of the Senate's long tradition of unlimited debate as a last refuge for political minorities and a brake on precipitous action by presidents and legislative majorities. Although Bush would have an easier time getting the judges he wants, Democrats warn that he could run into trouble on Social Security, tax simplification and other major second-term initiatives that will probably require Democratic cooperation for passage.

Use of the nuclear option "would make the Senate look like a banana republic . . . and cause us to try to shut it down in every way," Schumer said. "Social Security and tax reform need Democratic support. If they use the nuclear option, in all likelihood they would not get Democratic support" for those and other initiatives, he added.

Republicans considered the nuclear option last year but backed off because they lacked the votes to prevail. Emboldened by a gain of four seats from the Nov. 2 elections, many of its most ardent supporters believe they now have the votes to win.

Staff writers Charles Babington and Charles Lane contributed to this report.

© 2004 The Washington Post Company