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Fri, Oct. 18

Filibuster trade-off paid off for GOP

WASHINGTON – When the "Gang of 14" agreed last month to oppose Senate Majority Leader Bill Frist's attempt to prohibit the use of filibusters to block President Bush's judicial nominees, many saw it as a big victory for the Democrats.

But several weeks later, after the swift confirmation of a half-dozen or more of Bush's long-delayed judicial appointments (a number that could grow to 10 or more in the weeks to come), observers now see Frist as the victor in the GOP's battle to put more conservative jurists on the bench, and the liberal Democrats are emerging as the losers.

As of this writing, Judiciary Committee Chairman Arlen Specter and Frist had moved six of Bush's nominees swiftly through the Senate. Two more, Terrence Boyle in the 4th U.S. Circuit Court and Brett Kavanaugh headed for the Circuit Court in the District of Columbia, were to go up for consideration late last week.

Several other nominees were awaiting votes before the July 4 recess. "We're going to keep pushing them through as fast as we can," a Senate majority leadership staffer told me.

Democratic leaders who wanted to preserve their use (abuse would be a more accurate word) of the Senate's unlimited debate rule to kill Bush's Appeals Court nominees spun the story as an abject defeat for Frist and the White House. They had preserved their use of the filibuster in judicial fights, which is what they really wanted after all, they said.

Many conservatives, too, saw the deal as a betrayal by the seven GOP senators who signed onto the agreement to break the logjam and prevent a vote on Frist's motion. But a different picture is coming into focus. Bush is putting a bunch of very conservative judges on the Appeals Court and changing the complexion of the nation's judiciary.

Frist believed he had a simple majority of 50 plus one (Vice President Cheney) to get his motion approved, but then the gang of 14 (half of them Democrats and half Republicans) agreed to stand together, opposing the rules change, but also agreeing that an undetermined number of nominees should reeceive an up-or-down vote.

That robbed Frist of seven votes that killed any chances of his motion winning approval at that point, though it remains at the Senate clerk's desk, ready for call-up at a moment's notice. But it cost Democratic Leader Harry Reid much more – seven crucial votes he needs to uphold his party's filibuster. Reid, from any point of view, was the bigger loser in this trade-off.

The reason: the deal worked out with the seven Democrats who signed on to it committed them to opposing the use of the filibuster except what they termed "extraordinary" circumstances. That has opened up the judicial floodgates in the Senate, as one by one they have won approval, often by large majorities.

This past week the Senate easily confirmed Thomas Griffith to the District of Columbia Circuit Court of Appeals, with 20 Democrats joining Republicans for the 73-24 vote.

Before that, the Senate in rapid succession had cleared five nominees that the Democrats once vowed would never see the light of day: Priscilla Owen, Janice Rogers Brown, William Prior, Richard Griffin and David McKeague.

None of this would ever have happened had Frist not challenged the filibuster abuse that had tied up the Senate in knots.

It was the threat of losing a key weapon in parliamentary tactics that forced seven Democrats to cave in and agree to give Bush's nominees the votes they deserved.

And that motion remains a real threat if Democrats attempt to stall future judicial nominees. Not only is Frist's so-called "nuclear option" still at the desk, ready to be ignited, but two of the seven Republicans, Mike DeWine of Ohio and Lindsey Graham of South Carolina, have said they will vote to approve it if the Democrats resume their filibuster war. They would give Frist the votes he would need to end the filibuster's use in judicial politics forever.

This emerges as a much more pivotal weapon in the Supreme Court battles to come, one that the Democrats fear more than anything else. And many believe that this is what this fight was really all about anyway, a test run for the coming debate over the next high court vacancy, perhaps later this year.

Parliamentary battles can be complicated, and sometimes it isn't always clear who the winner of a rules struggle is until the smoke has cleared and the body restores regular order. This past week, it became very clear who won and who lost.

Bush was putting a bunch of his previously filibustered nominees on the federal bench. Frist had forced a key bloc of Democrats to back down in the face of his threats to prohibit judicial filibusters, making him a majority leader they must reckon with. The federal judiciary was heading in a much more conservative direction.

Who says nothing is getting done in Congress?

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