How the Senate majority leader played a game of filibuster chicken

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.

but tactically they gave up nothing in exchange for a few concessions.

What are you saying, giving up Saad and Myers is "nothing"? Or insignificant from a "tactical" perspective?

Frist wants, and watned, an up or down vote on every nominee. If the constitutional option had gone through, he would have had it. Now it is certain that he won't. Not unless the two of the DEMs somehow, miraculously decide not to filibuster Myers and Saad.

We got what we wanted, albeit not by the stick-it-in-your-face, smash mouth ultimate humilation method, which many wanted.
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Exactly and you need to do this in a legislature because you have to deal with the other side over and over. You want them to agree with the way you get the judges so they don't delay everything else. Thus it was important that the Dims get cover.

But the deal is still pending. The Dims must back off on Bolton and cooperate in other ways too.

We all agree that all Bush's nominees deserve a Senate confirmation vote.

I *also* state that the nominees deserve confirmation ... because they do.
"You and I agree that all of the president's nominees deserve confirmation (but I've not seen the closed-door reports - so I could be persuaded otherwise) ..."

When the worst the Dems can come up with is that some of these nominees were in the Federalist Society, or (yikes) dared to say something pro-life, I am *sure* they all deserve confirmation and will be assets to the bench.

NOT A SINGLE NOMINEE THAT WAS FILIBUSTERED HAD THEIR COMPETENCE QUESTIONED.

Of course the LibDems will vote against the best conservative Judges, but in a fair world all of these stalled Judges would sail through with 80+ votes in favor.

One of my fears is that our RINO contingent will 'throw' a vote or two to the Dems to avoid a filibuster while taking down a qualified judge. We need to avoid that, hence my statement "these Judges deserve confirmation".

Look, if you're one of those who simply doesn't comprehend the way the Senate works, and are honestly afraid of the way this was done, I apologize to you. Believe me, I've been dealing with many the last several weeks, calming their fears, and perhaps I just wasn't patient enough with you.

I don't recall your frequenting these threads 3 & 4 weeks ago, so maybe you haven't been educated that historically this the way these power shifts in American politics have always occurred. There has always been a mushy middle to contend with in the Senate (think - the "yellow dog democrats" siding with Reagan), at least in my life, and several others posted even earlier American history. This is not unexpected, and Frist has been working on getting these judges a vote from the first day of this session of Congress, and that is happening despite McLame.

Now, though, the Demodogs have been handed their hat - and they will not try to pull any more shenanigans until the USSC nominations, if then. Take a look as some of my other posts today for more factors, if you care.

This, I wrote on another thread just today, and though it doesn't completely apply here, it illustrates yet another part of Frist's calculations during this session:
---->

The chances of a majority D senate in 2006 are vanishingly small. A majority D senate in 2008 are at best marginally better, but by then it is probably more likely there will be over 60 R's.

Look at the cost/benefits to a future D-president (a much better 2008 chance than D-Senate) --- Which of the D-candidates would savor allowing the most conservative R-Senators to, in effect, choose their Cabinet by filibuster? --- judges?

The only reason they have allowed it to go this far is because they never in their wildest dreams believed that Frist would go to the NUKE - I suspect they thought that the public would side with them somehow and force him to back down. When Frist hadn't backed down, and the Gallup poll came out saying that 69% thought a president's nominees deserved an up-or-down despite all the spin the media had put on it, they KNOW they've lost.

Now, the best they can do is to try to save face, but if they allow a filibuster of judges, they will be saying that the FORTY MOST CONSERVATIVE REPUBLICANS will have veto power in perpetuity over D-appointed judges.

Some may not have realized this yet, but when it comes time for any Nuke Option vote, they will reflect long and hard on whether those are the rules they think they want in 2008. I think they already know it, but they're playing to their rabid leftists now.

I have to interject, that if the Dem's had gone through with their stated intentions, there would have had to be a "cloture" vote on everything from nominations for dog catcher to the most "important" legislative action - followed by a nominal (I believe) 30 hours of "debate" as well as whatever "debate" preceded the cloture vote. Typically, these things get done by "unanimous consent" and many things are simple voice vote, often on a whole group of issues or nominations at once.

I disagree that we lost time. If the Nuke had been done, that would have laid to rest for all time the question of whether a President would get an upordown on his nominees, but for this session of Congress, at least, the Dems could very well have ground business to a painful crawl, as they threatened. Who would win then - I dunno...

I don't know why it's so difficult for so many around here to comprehend. I won't go so far as to declare this as a victory for the GOP (that remains to be seen, IMHO), but tactically they gave up nothing in exchange for a few concessions.

Your premise assumes at least two of the RINOs will end up voting to invoke the nuclear option when the Democrats try to filibuster the next Bush judicial nominee. I don't have as much confidence in any of these seven turncoats as you do apparently.

Agreed. Even back when all the bleating about Specter was going on around here it was obvious the GOP couldn't risk embittering Specter - - they had to give him his chair, and along with it they gave him a message: "Play ball." (You'll notice that he was, conspicuously, NOT one of the "gang".)

Plus, I knew Specter would stay cool because he owes Bush and Santorum BIG TIME - - I really believe that Toomey may have beaten Specter in the promary without that support. And Specter knows it. In fact, I wouldn't be surprised if "playing ball" was part of the deal for that primary support all along.)

Regards,
LH

Not only have Graham and DeWine said that they will not play games on filibusters if the Democrats get silly, but even Susan Collins has indicated that she is getting impatient. I also believe that Warner could flip if the rats get stupid. (Sure, Chafee, Snowe and McCrazy are hopeless scumbags, but that's a given.) Basically, I believe that (at least) two additional votes will be there to provide a winning margin if the time comes to nuke. Now that the rats have walked into the trap and provided cover for blue state GOP Senators, the likelihood of a successful nuke is vastly improved.

Regards,
LH

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.

Let's see...Against the filibuster were McCain, Warner, Snowe, Collins, Chafee (that's five), and a firm "no-commitment" from Specter (that's six). Seems that Frist didn't have the votes for the nuclear option.

I 100% agree about the Specter support. That thinking is exactly why I keep saying Frist (and with him, Bush) has had this battlefield prepped possibly even BEFORE January. Like it or not, we could not afford to lose that PA Senate seat this session - the contingency of what to do when the RINOs struck was in great jeopardy as it was, without having even one less vote available --- and everyone knew as much as a year ago what the Demodogs were planning for this session.

I was even helpful and put this text in bold:

In short, we intend to continue to fight for up-or-down votes on each and every nominee.

Now, you obviously feel differently. That's fine. But I'm not taking your opinion over the statement from Dr. Frist's office. Again, I expect a vote on each nominee. If the Dems filibuster Saad and/or Myers, I think they get nuked.

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