Conservatives Without Conscience

without tying the Senate into procedural grid-lock. Mansfield in effect introduced the modern filibuster.

For decades before the advent of Mansfield’s system, in order to conduct a filibuster a senator had to be recognized by the presiding officer and then had to maintain the floor by talking. Because one man (or woman) can talk for only so long without sitting, eating, sleeping, or addressing other human necessities, the senator running it was permitted to yield to a colleague to continue it, thus operating like a tag team. Groups of senators would agree in advance to relieve one another to prevent loss of the floor and to make it possible to continue round-the-clock. They would sleep on sofas in the Senate cloakroom; some even wore a device known to long-distance bus drivers as a motorman’s pal, enabling them to relieve themselves without leaving the Senate floor. Thus, whenever there was a filibuster, all other Senate business came to a halt until they either got the unwanted proposal removed from the Senate’s agenda or a cloture vote ended it.

Mansfield’s proposal changed all this. The Senate, by long tradition a highly collegial body, does most all of its business, of necessity, by unanimous consent. Under Mansfield’s “two-track” system, the Senate agreed, by unanimous consent, to spend its mornings on the matter being filibustered, and afternoons on other business. Professors Catherine Fisk and Erwin Chemerinsky pointed out in a study that this system worked for everyone. On the one hand, the two-track system strengthened the ability of the majority to withstand a filibuster by enabling it to conduct other business. On the other hand, it made it easier for the minority, which no longer had to hold the floor continuously to prevent something less than a supermajority from cutting it off. In time, the mere prospect of a filibuster became enough to block consideration of a given matter. Based on successive changes of the Senate rules, the supermajority needed for a cloture vote was reduced to a vote by sixty senators. Thus, when a senator informs the leadership of plans to filibuster—and the leadership knows that he or she has the support of at least sixty senators and, therefore, the ability to invoke cloture and override the threatened filibuster—the matter will not even go to the floor for a vote. The modern filibuster has therefore become silent, since its mere threat results in stopping a debate in its tracks.

Because the filibuster is a negative procedure, and one that frustrates the will of a simple majority, those trying to force something through the Senate with something like a “one-vote victory” will often complain about how the minority is tying up the Senate. While such opposition has given it a bad reputation, the minority party must be able to rely on it to prevent the tyranny of a bare majority. In its present form it is, in essence, a minority veto. To overcome it requires a supermajority—a supermajority the Republicans do not currently command. Accordingly, authoritarian conservatives in the Republican ranks of the Senate, many of whom once served in the House, where a simple majority always prevails, want to change the rules. But because they do not have the two-thirds support necessary for doing so, Republicans are prepared to rely on a parliamentary gimmick that would drastically change the nature of the Senate, by eliminating the Senate’s unlimited debate for judicial nominees, which could then be extended across-the-board. It is so radical, and with such potentially devastating consequences for this traditionally highly cooperative and collegial body, that it is viewed as certain to create the equivalent of a “nuclear winter,” and for that reason it is called the “nuclear option.”

The possible use of the nuclear option first arose when the Democrats lost control of the Senate following the 2002 election, and President Bush started sending it increasingly hard-right nominees for federal judgeships. Democrats decided that their best option was to do what Republicans had done when Democrats controlled both Congress and the White House. During the 1968 presidential campaign, President Lyndon Johnson nominated two liberal justices for Supreme Court seats, proposing to move Abe Fortas from associate justice to chief justice and then to place Homer Thornberry in Fortas’s seat. Senate Republicans filibustered the Fortas nomination, which gave the next president, Richard Nixon, the opportunity to appoint a new chief justice. But when Democrats adopted that strategy and started filibustering Bush’s lower-court nominees to prevent him from packing the federal judiciary with right-wing judges and justices, conservatives became furious. Republicans refused to treat this as fair play, even though during the Clinton presidency, Senate Republicans had blocked votes on judicial nominations by simply refusing to process them, which meant some sixty Clinton nominees never even had a hearing before the Senate Judiciary Committee. But when Democrats sought to block Bush’s nominees, Republicans refused to treat this as fair play.

Here is how the nuclear option would work, as explained by The Hill, the newspaper that covers Congress. Rather than seek a vote to change the rules of the Senate, which they would lose since they do not have a two-thirds majority, Republicans would seek a ruling from the presiding officer of the Senate—most likely Vice President Dick Cheney, who is the president of the Senate—that Rule XXII, the cloture vote rule, does not apply to so-called executive matters such as judicial nominations submitted to the Senate by the president, but only to legislative business. Republican senators would likely argue that filibustering the president’s business, which consists of matters on the “executive calendar” such as nominations and treaties, would be a violation of the separation of powers. Needless to say, such a procedural ruling would be contrary to long practice, but Cheney would almost certainly give the GOP members exactly what they want, and Democrats would have little recourse. It takes only a simple majority to override a ruling of the presiding officer, but the Democrats do not have one. Nor could the Democrats follow the Killer D’s example in Texas by simply walking out, for the fifty-one Senate Republicans could run the Senate in their absence with more than enough senators for a quorum.

To date, the nuclear option has not been exercised, although Senate majority leader William Frist was ready to pull the trigger before a group of seven moderate Republican senators joined with seven Democrats to prevent the authoritarian conservatives from imploding the Senate.[*] The Gang of Fourteen (sometimes called the “Mod Squad” because they are all moderates) reached an agreement, which they executed in writing, that eliminated the use of the nuclear option—at least temporarily.[57] The gist of their understanding was that the seven Democrats would not vote with their party on filibustering judicial nominations except in “extraordinary circumstances,” and the Republicans in turn agreed not to vote with their party and the Republican leadership for the exercise of the nuclear option. (By subtracting seven votes from either side, the moderates, in essence, took control.) It was basically a good-faith effort, since only a few details were worked out, including that the Democrats would prevent further filibustering of three of Bush’s nominees. It was a perfect example of the way the Senate should work, using the give-and-take of compromise. The Gang of Fourteen has continued to meet, but their agreement is binding only for the 109th Congress, which will end in January 2007. Authoritarian conservatives in the Senate will likely try the nuclear option again if Republicans control the Senate in 2007, should Democrats try to use the filibuster on judicial nominees. Needless to say, there is nothing conservative about destroying Senate precedent and tradition, but then, authoritarians are not troubled with conscience, even if they call themselves conservatives.

The Authoritarianism of the Senate Leader: Who Wants to Be President

It was Senate majority leader William Frist who led the Senate to the brink of nuclear catastrophe. Frist had been a well-known heart transplant surgeon at Vanderbilt University’s hospital in Nashville, Tennessee, before he was elected to the Senate in 1994. Before becoming majority leader he had made almost no serious news whatsoever since arriving in Washington, although he was occasionally featured in human interest stories. He provided emergency care for the man who shot a Capitol Police guard, and, in turn, was shot by the guard; and after the anthrax attacks in the Senate, his explanation of how the deadly poison worked was enlightening.

A December 31, 2001, profile in Newsweek described him as “brainy and intense, confident to the point of arrogance,” “a daredevil by nature,” “ambitious, eager to be noticed, [but not] a team player at heart—and White House strategists know it.” His seemingly iconoclastic independence was appealing, and many welcomed his selection by his Senate peers to replace Senator Trent Lott (R-MS) as majority leader. After being told by an insider that if Vice President Dick Cheney’s health took a serious turn for the worse, Bill Frist was at the top of Bush’s list to replace him, I decided to read the hagiography by Charles Martin, Healing America: The Life of Senate Majority Leader William H. Frist, M.D., which revealed that Frist has been slated to be president of the United States since he was only a few days old.

It is a novel story. It seems that when Bill Frist was busy campaigning for the Senate in 1994, his associate, Dr. Karl VanDevender, was responsible for running the Frist Clinic, which recently had admitted a longtime Frist family employee, the trusted yardman, housekeep, and handyman, whom they affectionately called “Mr. John.” On election night Karl VanDevender was monitoring Mr. John, who was fading fast of kidney failure. At one point in the evening, as VanDevender kept an eye on the television and reported the returns, Mr. John whispered his last words. “Dr. Karl,” he said, “since the day this happened, more than forty-four years ago, I’ve only told two people—my pastor and my wife.” VanDevender brought a chair to Mr. John’s bedside and leaned in close to get every word of Mr. John’s astonishing story.