By RICHARD POWELSON
Scripps Howard News Service
May 10, 2005
The lawmaker from Tennessee has worked in vain for two years for an agreement with Democrats. Now he is "close" to using the GOP's 55-member majority to change rules or procedures, his staff says.
If he is successful, it could take just 51 votes of the 100 senators to end delaying debate, called a filibuster, instead of the 60 votes needed now.
In one of the Senate's first widely reported filibusters, anger exploded during a harsh personal exchange between two Southern senators in 1841 when one snarled that the other appeared "cowardly." Their next move, they agreed, was a duel by pistols.
Quick-moving officers took them before a magistrate, who convinced Sens. Henry Clay of Kentucky and William King of Alabama to fear the court rather than fire at each other, according to Sen. Robert Byrd's book on the chamber's first 200 years. They were released after posting peace bonds.
Today's anger among Republican senators focuses on Democratic filibusters over the past two years that blocked votes on 10 nominations to circuit courts of appeals.
Frist's proposal, announced last month, would require a committee review and vote for every appellate nominee, and a floor vote after no more than 100 hours of debate.
"It's time for judicial obstruction to end," Frist said in a recent floor speech. "Senators have a duty to vote up or down on judicial nominees. ..."
Filibusters are not the problem, Democrats say. President Bush should not nominate "unsuitable, extreme" candidates, but persons "who will generate strong, bipartisan support," Senate Democratic leader Harry Reid of Nevada and Patrick Leahy of Vermont, the senior Democrat on the Senate Judiciary Committee, wrote Bush last month.
Democrats complain that Republicans controlling the Judiciary Committee during President Bill Clinton's administration did not allow a committee vote on 23 circuit-court nominees and 38 district-court nominations.
How many filibusters have occurred since 1789? There is no complete total, said Donald Ritchie, the Senate's associate historian. The Senate often met in closed sessions before 1929 on nominees and treaties. There were no news reporters inside, no transcripts of remarks.
The Senate Historical Office counted 657 times since 1917 when there was a formal vote _ called "cloture" _ to try to end a filibuster. The side wanting to end talk won 237 of those battles.
Until as recently as 1975, Ritchie said, senators rarely attempted cloture because it required a two-thirds majority (as many as 67 of the 100 senators). A change in 1975 reduced the requirement to 60 votes.
Frist has criticized Democrats for their 2003 and 2004 filibusters blocking final votes on 10 of Bush's circuit-court nominees. He said it broke 214 years of Senate tradition where a candidate with "majority support" had always received a final vote.
But Democrats, including former Vice President Al Gore, note that Republicans ignored the 1968 filibuster against Abe Fortas, President Lyndon Johnson's choice as chief justice. A majority (45) who voted favored ending debate on Fortas so he could receive a final vote. There were 43 voting against ending the filibuster, and 12 did not vote.
Johnson soon withdrew the nomination.
The Constitution gives the Senate the role of "advice and consent" on judicial nominations.
Brannon Denning, an associate professor at Samford University's school of law in Birmingham, Ala., has researched constitutional law and the judicial process. He said the Constitution does not clarify how much advice and consent the Senate can give. Denning suggested this compromise. Allow a full debate, and at some point permit a motion to end it. Perhaps keep the current 60-vote minimum on the first cloture vote, then reduce the number slightly in later votes until a simple majority of 51 votes ends debate, he said.
"That seems like a reasonable compromise," he said. "If you don't have the votes to defeat a nominee, you don't have the votes."