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.
Ok, thanks. The rest of the post, however, contained good info, and I hope I didn't ruffle any feathers by reposting the text.
Good analysis. At first, I was very upset but I felt that I would wait to see how it played out. So far, so good.
I knew that there would be hand wringing and threats of throwing the baby out with the bath water, but I don't subscribe to that outlook.
Keep the nominations coming like trying to drink water from a firehose.
Pelican Five
Um... it's only been two weeks since the infamous agreement, and I don't remember them getting beyond Owens. Then the Bolton mess came up and everything else has been back-burnered, it seems.
Scheduled for when?
The jury is still out on whether or not we "got what we wanted". Owen was a nice start. Brown will be even nicer. The fact that Frist still has the constitutional option in his back pocket is certainly encouraging. And yes, the Specter spectre is still an unknown, so maybe it's good that he wasn't put to the test of an actual vote on that option. However it's hard to avoid the strong suspicion that some of the gang of 7 may have cut side deals that will yet turn the wins on these few battles so far into a wider Republican defeat later on. So I'm neither warm nor fuzzy about this yet...
Well in my book, Frist just went up a notch, though I still think any hopes he had for the Presidency went down along with McCainiac's in that deal.
I'm really curious to find out exactly what Trent Lott was up to in the middle of all of this. I've seen and heard more than one report that he was working behind the scenes pushing the Gang of 7 in order to show up Frist and the President. Word is, he has delusions of resuming the Majority Leadership when Frist steps down next year. Personally, I'd prefer Mitch McConnell, as he's always struck me as a Tom DeLay type of leader.
Mr. FRIST. Mr. President, on Monday, June 6, the Senate will return from the Memorial Day recess and resume consideration of the nomination of Janice Rogers Brown for the DC Circuit. There will be no rollcall votes on June 6, but Senators are encouraged to come to the floor that day to speak on the Brown nomination.As a reminder, cloture was just filed on the Brown nomination and the nomination of William Pryor to the Eleventh Circuit. Thus, we will vote on the cloture motion with respect to the Brown nomination on Tuesday, June 7, at noon.
Given the agreement reached this week, I expect cloture to be invoked and hope that we can proceed to the confirmation vote on Judge Brown early Tuesday afternoon. I also would like to remind my colleagues that we have time agreements with respect to the nominations of Griffith, McKeague, and Griffin to the circuit courts, as well. It is my intention to move to these nominations at an early time, as well.
Finally, since we were unable to finish our work on the Bolton nomination to be ambassador to the United Nations, we will revisit this issue following the break, as well.
Wrong. History shows that ANY time there is a "compromise" (1850, 1991 budget deal) the winner is the one who gets ANYTHING tangible, regardless of the "principle" given up. Check it out: find me one "compromise" in Am. history where the winner got a principle. On the other hand, in the Comp. of 1850, the north got CA and the south got a promise to enforce the FSL. In 1991, the Dems got a tax hike for a promise to cut spending; and at Versailles in 1919, the Brits and French got tangible cuts in German arms in return for "promises" about "freedom of the seas" from Wilson.
Well put... amazing how many saps eat it up.
McCain is toast, but the story has yet to be written about Frist. His political future will hinge on the Supreme Court nominations. That fight will make the current one look like a practice game.
A big bunch of loony libs were on C Span last night lamenting Janice Rodgers Brown in great detail. They showed a long list of orgs that oppose Brown. Libs are hoping that Brown will be defeated by the Senate, but let's see what the Pubbies do.
Hey pal... I got some magic beans I 'wanna sell 'ya!
I forget exactly. I believe Brown is today and Pryor Thursday or Friday.
And to me that's perfectly understandable. It's the "This deal is a disaster for the GOP!" crowd that makes me weary.
And it's amazing how many times you can post without actually saying anything of substance.
No he didn't.
But from the article, he does now! That means that this was a masterful stroke for the conservatives inside the Party.
So, you're saying Frist won DESPITE not having the votes? I suggest you rethink your position.
Thanks for the ping. I'm uneasy that whenever something has to be explained why it's a good deal for us, that's it's not really a great deal. LOL
You're entitled to your own opinion... no matter which brand of rose-colored glasses you wish to wear.
You're not going to have votes on 10 judges in one day. Let's wait and see what happens. In my book, the situation is encouraging. We have three so far, Frist is not backing down, and DeWine/Graham are looking for the tall grass. They will not support the deal if another judicial fillibuster occurs. The Dems have been locked into citing "extraordinary circumstances" if they do fillibuster. Since simply being opposed to a nominee is not going to cut it, they will have a great deal of trouble making that argument stick.
Two weeks after the deal, I'd say we are in MUCH better position than we were two deals before the deal. The key is how much will Frist press the issue. I see no indication that he will not continue to press it.
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