Politics: Congress

Senate Majority Leader Bill Frist is considering a controversial ban on filibusters for upcoming judicial nominees in order to facilitate the confirmation process. Democrats have already used the filibuster to prevent voting on a handful of President Bush's court nominees this year, but proponents say it is the constitutional right of those in the minority. What's at stake for Frist's own political ambitions? Where do fellow Republicans stand on the issue? How likely is it that this "nuclear option" will succeed?

Washington Post congressional editor Charles Babington was online to discuss this issue and all the latest happenings in Congress.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

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Annapolis, Md: Hi. Very interesting topic. Thanks for moderating.

Suppose Frist decided that rather than vote down the filibuster rules, he would take it to court, over the grounds that the filibuster negated the majority based law-making ability of Congress.

1. Is that a plausible argument?
2. How would that case get into the court system (i.e., would he sue somebody?).

Thanks.

Charles Babington: I've heard no one suggest that Sen. Frist might take the filibuster issue to court before trying to change the rule on the Senate floor (the so-called Nuclear Option)... One thought on the "the majority based law-making ability of Congress": That's a somewhat complicated theory when you're talking about the Senate, which in many respects is not "majority based." Remember, Idaho has as many senators as California. In fact although Democrats have only 45 of the 100 seats (counting an independent. who votes with them), those 45 senators represent more Americans than do the 55 Republicans, thanks mainly to GOP strength in comparatively small states.

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Fargo, N.D.: Senator Frist, would you please consider bringing back the real filibuster of the past? Norm Ornstein has been quoted with the proposal that the politicians of today don't have the staying power to do hours and hours of filibuster in the same legacy of Huey Long and Strom Thurmond. Therefore, is it possible to demand the Senate vote UP OR DOWN or face full filibusters on all 20 of the Bush judges blocked by blue slips or other political games in the past 4 years?

Charles Babington: I hear similar comments quite often. The reason you don't see "real filibusters" -- with members talking for hours while others rest on cots -- is that it's quite painful for the majority party, and all that pain may result in little gain. Here's why: It takes only one or two minority-party members to keep a filibuster going (they just keep talking), and all their colleagues can go home and rest. At any time, the speaker can suggest "the absence of a quorum," and then nothing happens (i.e. that person too can go rest) until a quorum is present. That requires the majority party (the one opposed to the filibuster) to bring most of its members to the Senate floor. But even that doesn't end the filibuster. To cut off debate (or obtain cloture), the majority party must muster 60 votes. If it's clear they don't have those votes -- and that's the case in all these filibusters of judges -- then there's no point in putting their members through the agony of trouping to the Senate floor at all hours of the day and night only to fall short again in a cloture vote.

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Philadelphia, Pa.: Many pundits keep saying that the Democrats don't have a message or positive agenda. That frustrates me because they do have a positive agenda. The Democrats' senate website has it listed under the headings "opportunity, responsibility, and security". Each of those headings has further details explaining those things. I know that the Republicans actually set the agenda and are thus more newsworthy. But why doesn't the press give the Democrats credit for at least having a positive agenda?

Charles Babington: When Republicans control the House, Senate and White House, there's no question that Democratic initiatives and proposals get less attention, and sometimes little at all. It's definitely a source of frustration to them, but the truth is, these proposals have no chance of passage unless they obtain significant Republican support. I'm sure Congress's Democrats will thank you for pointing readers to their website.

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washingtonpost.com: Link to today's feature on Santorum: Father First, Senator Second.

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Harrisburg, Pa.: Is our Senator, Rick Santorum, a hypocrite or what? He is under fire for having his home town in Pennsylvania pay for his children's private D.C. area education while living in the D.C. area. Personally, this doesn't bother me as much as I don't think people realize the importance of members of Congress being with their families and doing the best they can for their children. What upsets me is that Rick Santorum is doing exactly what he criticized his opponent for doing. Santorum was first elected to Congress by running ads criticizing the incumbent Congressman for having a home near D.C. I guess I already know the answer but, here goes, is hypocrisy common amongst members of Congress?

Charles Babington: Hypocrisy in Congress? My, you are so cynical.... My colleague Mark Leibovich has a nice profile of Sen. Santorum in today's Style section, and it touches on the issue of his children's education.... Look, there are plenty of cases involving lots of lawmakers where one could charge hypocrisy. For example, quite a few House members got elected promising to stay for only 3 terms, only to drop the pledge six years later and easily win a fourth term. Ultimately it's up to the voters to decide what's unacceptable and what's not.

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Vista, Calif.: Why don't you just debate around the clock? Make the Democrats -really- filibuster!

Charles Babington: well, I explained it as clearly as I know how... You make the Democrats debate "around the clock" only by making Republicans stay on the Senate floor "around the clock." And then you end up right where you started: Three votes short (or whatever) of the 60 needed to stop the filibuster. There's just not much appetite in either party for that.

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Lowell, Mass.: Good Morning, Mr.Babington
I've read this morning that at least seven Republicans are still undecided on this matter.
What is the consensus on whether or not this rule change will pass or even be brought up for consideration ?
Is a 'Super Majority' vote required ?

Charles Babington: I think seven is too high (I'm curious where you read that). But your main point is valid: It's quite unclear whether Frist has the votes to change the filibuster rule. Dems insist he needs a two-thirds majority, but the Republicans say they need a simple majority (this could be eventually litigated, I guess). Here's the conventional wisdom: With 55 Republicans (and all Dems holding firm), Frist can afford to lose 5 from his party. That would result in a 50-50 vote, and VP Cheney would break the tie in Frist's favor. Sens. Chafee and McCain have said they will not support the nuke option, and many believe Sens. Snowe and Collins won't, either. That's four. Frist could lose only one more. The biggest question marks are Sens. Hagel and Warner. If BOTH of them oppose the rule change, it's dead... I don't think anyone outside Warner's and Hagel's inner offices know how they will vote.

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New York, N.Y.: Does it make any difference whether the Majority Leader exercises the constitutional option before or after a Supreme Court vacancy?

Charles Babington: From a technical standpoint, no. But Republicans would like to settle the question before there's a Supreme Ct. vacancy for two reasons. First, it would let President Bush know whether he must nominate someone who can get 60 votes or 51 votes. In other words, he could choose a more conservative nominee if the filibuster is banned. Second, Republicans feel it would be too complicated and distracting to fight the filibuster question at the same time as a battle is underway for the first Supreme Court nominee in more than a decade. They'd rather be able to focus entirely on the filibuster question first.

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Chicago, Ill.: Didn't the Democrats really fire the first shot in this "nuclear war" by routinely using the filibuster to stop an up or down vote on nominees? While one can make the case on the margins that the filibuster has been used in the past, this usage of it is unprecedented and is the real "first strike."

Charles Babington: You can argue this question forever (and believe me, they do). It's true that until now, the minority party has not filibustered several judicial nominees at one time. It's not true, however, that such a filibuster is unprecedented. In 1968 (when Dems controlled the Senate and White House), GOP senators (with a few Dem supporters)successfully filibustered LBJ's nomination of Abe Fortas to be chief justice. I wrote a story on this recently, noting that it was a full-blown filibuster despite occasional claims to the contrary... Republicans now sometimes say that never before was there a filibuster of a judicial nominee who had "clear majority support" in the Senate. In fact, it's unclear whether Fortas could have won a simple majority vote in 1968. The question was never tested because the filibuster kept his confirmation from coming to an up-or-down vote.

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washingtonpost.com: Link to Babington's article on Fortas: Filibuster Precedent? Democrats Point to '68 and Fortas.

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Lawrenceville, Ga.: My question concerns immigration. Does the
Congress plan to take it up this year? It's a pretty
important issue with ramifications for national
security and the economy. I think this whole
division in the GOP over the issue is slightly
exaggerated. Bush's plan probably isn't popular
among MOST congressional Republicans. There
are a few here and there, and sure the economic
conservatives have no problem with it, but I doubt
that most GOP-ers are supporting it.

Charles Babington: Immigration is a tough issue, and it does divide Republicans (and some Dems). Some lawmakers focus mainly on questions of law enforcement, immigration control and terrorism. They want tougher immigration laws (and enforcement), which would make it easier to keep illegals from entering the country, and easier to deport or jail those who get in. Others focus more on economic issues, such as the farms, restaurants, hotels, etc., that rely heavily on low-wage undocumented workers. These lawmakers say they also are being realistic, noting that millions of undocumented workers are in the country and there's no sense in pretending they're not, etc. I don't know whether Congress can agree on an immigration bill this year, but I think the divisions are a little deeper than you suggest.

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Charles Babington: Thanks for the good questions and comments, see you next time.

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