Posted on 06/07/2005 4:51:37 AM PDT by Coop
Reprinted with permission from the National Review, 6/20/05
Dr. Frist's Operation
How the Senate majority leader played a game of filibuster chicken
by BYRON YORK
NATIONAL REVIEW/JUNE 20, 2005
On the morning after a group of 14 senators made a deal to end the standoff over Democratic filibusters of Bush judicial nominees, Senate majority leader Bill Frist found himself taking flak from all sides. Depending on who was speaking, Frist had wimped out, was unable to control his troops, or could not muster the support to trigger the "nuclear option" to put an end to the filibuster problem entirely.
And that was just from conservatives. Other commentators said Frist had lost the leadership of the Senate to John McCain. Still others argued that he could not do his job while entertaining hopes of becoming the GOP presidential nominee in 2008. The Los Angeles Times suggested he resign.
All in all, it was a tough period for the majority leader. But did he really deserve all the criticism? Republicans came out of the filibuster showdown with six previously filibustered nominees headed for confirmation, and, perhaps more important, in a strong position ultimately to break all the Democratic judicial filibusters, should it come to that. And much of the credit for that, according to interviews with several people closely involved in the fight, belongs to Bill Frist.
Frist's entire strategy rested on one key decision: his commitment to use the nuclear, or, as he prefers to call it, the constitutional option. Once Frist decided that, unless Democrats backed down from their filibusters, he would exercise the option--a parliamentary maneuver that would allow him to cut through the filibusters with a simple majority vote--every threat he made was a credible one. When he said he intended to act, he meant it, and his determination became the force that drove events.
There seems little doubt that Democratic leader Harry Reid got the message. While Frist threatened, Reid made a series of successively more accommodating offers of compromise. At first, when it was not fully clear that Frist was committed to going ahead with the constitutional option, Reid tried to settle the conflict by offering to drop his party's opposition to a group of three Michigan nominees to the Sixth Circuit Court of Appeals. It wasn't a serious offer; Democrats had never opposed any of the three on ideological grounds and were instead blocking them at the behest of Sen. Carl Levin, who remains angry to this day that two Clinton nominees from Michigan, one of them related to Levin by marriage, were not confirmed by the Republican Senate. Democrats were probably going to abandon their position anyway, so why not, some reasoned, offer the Michigan judges as a bargaining chip to Frist?
Frist rejected the offer. Then Reid became a bit more serious, coming back with a new proposal: Frist could have the three Michigan nominees plus one of the three most "controversial" Bush nominees, Priscilla Owen, Janice Rogers Brown, or William Pryor.
Frist again said no and continued preparing for the nuclear showdown. Then Reid came back again, offering the three Michigan nominees plus two from the controversial group. Once more, Frist refused.
As the days went by, Frist never moved from his position. When NATIONAL REVIEW asked a source close to the majority leader, "At some point, does it make sense to deal?" the source answered, "No. The leader is very adamant about this because [making a deal] would never solve the problem." And that was that.
By then, everyone, including Harry Reid, knew Frist intended to go nuclear. After days of talking, the Gang of 14, the so-called "moderates" who had appointed themselves to negotiate a settlement, realized they had to work quickly, because Frist would soon take action. So another offer came to the table: Democrats would give Frist the three Michigan nominees, plus Owen, plus Brown, and plus Pryor--all of the most controversial Bush choices.
Sources say that Frist was kept closely informed of everything that went on inside the negotiating room, but did not control events there. (In contrast, it appears that the deal-seeking Reid was fully involved in his senators' negotiations.) In the end, Democrats in the Gang of 14 agreed to filibuster future nominees only in "extra- ordinary circumstances" but left it to themselves to decide what those circumstances would be. Republicans expressed reluctance to use the nuclear option but did not forswear it either. The GOP won a Democratic pledge not to filibuster the six judges, while the fate of four others was left undecided.
It was a clear win for Republicans, who gained up-or-down votes for their most fought-over judges while not conceding anything. But it did not "fix the problem" of filibusters, the necessity of which Frist's aides had asserted so often. And even as the deal was celebrated in the press--it was for a few days seen as a Democratic victory, until the extent of Democratic concessions finally set in--Frist was eager to make clear that it wasn't his doing. In response to an inquiry from NATIONAL REVIEW, a Frist aide sent a copy of an uncompromising statement Frist had made on the Senate floor, accompanied by a note that read, "This deal was not Senate leadership's capitulation. We didn't agree to it, and don't intend to acquiesce to the deal... In short, we intend to continue to fight for up-or-down votes on each and every nominee."
Frist was saying as much himself. He made clear that he would continue to seek votes on each nominee, and he also made clear that he believed nothing at all would have happened without his threat to go nuclear. "Without the constitutional option, Priscilla Owen would never have come to a vote," Frist said. "Neither would any of the other nominees... Without the constitutional option, the minority would have adhered to the path it was on and deal-brokers would have had no deal to broker... If filibusters again erupt under circumstances other than extraordinary, we will put the constitutional option back on the table and will implement it."
And he will most likely have the votes to do it. After the Gang of 14's deal was announced, two GOP senators, Ohio's Mike DeWine and South Carolina's Lindsey Graham, made clear that they would vote to implement the nuclear option if Democrats resumed their filibusters. That would give Frist the 50 votes--plus Vice President Dick Cheney's tiebreaker--that he needs to make it happen. (Graham's offer came after he found himself under withering criticism back home for joining with Democrats in the compromise; "The calls won't quit, and they're almost all against Lindsey," the head of the South Carolina GOP told The State newspaper.)
Meanwhile, as Frist reiterated his determination to win votes for all of Bush's nominees, Reid was almost desperately trying to rid himself of the issue. "I think we should just move on," Reid said to Frist on the Senate floor. "Filibusters don't happen very often. I think we should move beyond this and get the business of the country done. Let's not talk about the nuclear option anymore. Let the Senate work its will. Let's get over this... Let's just move on and not talk about this anymore."
Fat chance. Reid quickly found that Frist was in no mood to move on to other issues when the majority leader immediately moved to confirm the judges covered in the agreement. In the end, his threat to go nuclear had forced Democrats to give in, exactly as planned. The situation reminded Republicans of the late 1970s, when Democratic senator Robert Byrd, then the majority leader, had used the same threat to force the GOP opposition to surrender. "If you look back at history and how these things have played out, it always ended up this way," says one Republican not closely allied with Frist, "meaning that the other side caved, and that's basically what happened here."
In addition, Frist kept working because he knew the battle was about more than just Owen, or Brown, or Pryor. It was about the next Supreme Court nomination, widely assumed to be coming sometime this year. How the Senate stalemate was resolved would determine what kind of judge George W. Bush could nominate. Would it be a judge who could be confirmed with a simple majority vote--the standard that has prevailed in the Senate for more than 200 years--or would it be a judge who would have to win 60 votes to survive a Democratic filibuster? That could mean the difference between a Clarence Thomas and a David Souter.
Frist is preparing for the former, not the latter. "We have set the stage," says the Republican who is not in Frist's inner circle, "for President Bush to nominate a 51-vote Supreme Court justice, as opposed to a 60-vote Supreme Court justice." That is what the filibuster fight was, and is, about. And, at least for now, it appears that Bill Frist is winning.
The strategic risk of a ticked off conservative base remains, but that's controlled in part by people reading this thread.
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The more I reflect on it, the harder it is for me to see that the GOP (not even the McCain RINOs) gave up anything, unless there's a part of the "deal" that hasn't been made public. The only actual effect I see of the "deal" is that the Democrats will abandon filibusters on most of the delayed nominations -- a clear win for Frist. If the Democrats try to filibuster another nominee, we're back to square one again (nothing lost for the GOP, but the Democrats already losing with regard to several nominations) except that there's a clear precedent over who will and won't back down.
I still think McCain & Co. acted like traitors in trying to broker a deal to get around their own party's position, but the net effect of the deal looks pretty good. For now.
The only way this could be portrayed as a Republican victory... would be that when the it came to numbers, Frist didn't have the votes to break the filabuster.
You can dress it up any way you want... but it's still butt-ugly.
This is a very informative article on the behind- the-scenes stuff. Thanks for posting it!
[yawn]
But as I suspected (Graham alluded to this when the deal came out) and this article supports, Frist was kept in the loop of what was going on.
Please don't mistake my comment as supporting John McCain! :-)
My sense of this whole thing is that Frist knew what he was doing and stuck to his guns. He did not lose any points with me in the great scheme of things.
Thanks for posting this Coop. The only unknown factor in this is whether Frist really has the 50 votes he needs even with DeWine and Graham on board. In other words, Specter has not indicated which way he would go if the option came up for a vote.
I believe this analysis is correct, confirmed by the unfolding of events since the gang of 14 made their deal.
The most important factor is the whooping Lindsey Graham and Mike DeWine have taken from their constituents. If the Dems filibuster again, these two have no political cover and will have to go along with the majority to salvage their political hides.
[zzzz]
One more thing, a plan to push through a bunch of district judges, which the demorats haven't been blocking, is a further retreat as it takes the attention away from what the demorats have been doing....which is block certain types of nominees. The republicans are in full retreat, and this time no amount of articles about how they really won will change my mind that a republican vote is a wasted vote!
I imagine the message was sent loud and clear that a real betrayal of the party line would result in punishments (loss of prestigious committee assignments, withdrawal of support for re-election, etc.) -- nonetheless, the apparent betrayal was still damaging enough.
And LOST!
And lost my support $$$$$$$$$$ too!
The GOP can kiss my arse and stop sending me weekly beggings.
When the time comes the NRA and swifties will get my $$$ but not the GOP until they grow a pair.
I heard him say, or read a quote by him, that it would be unfair for these nominees not to get an up or down vote.
Hard to argue with such reasoned, point-by-point analysis and thoughtful prose. You've convinced me! Did you and johnny attend the same political strategy seminar?
Do you really think you're helping your cause?
I agree. You can put lipstick on it, but it's still a
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