By Terry M. Neal
washingtonpost.com Staff Writer
Wednesday, May 4, 2005 12:00 PM

Both sides of the debate on the judicial filibuster issue will insist they're fighting over facts. But in reality the fight is over what it always is in Washington -- power.

There is no consistent Democratic or Republican position on the Senate filibuster. There is only rhetoric. The only consistency in the debate seems to be coming from voters, who appear to favor a balance of power in Washington, according to a new Washington Post-ABC News poll.

Eleven years ago, when Republicans were still in the minority, Sen. Orin Hatch (R-Utah) described the filibuster as "one of the few tools that the minority has to protect itself and those the minority represents." And while Hatch didn't support a filibuster of any judicial nominee, he has voted to block at least one Democratic presidential appointment from receiving a straight up or down vote on the Seante floor.

In 2000, when Bill Clinton was still president, Sen. Charles Schumer (D-N.Y.) expressed frustration over Republican tactics, saying: "The basic issue of holding up judgeships is the issue before us; not the qualifications of judges, which we can always debate. The problem is it takes so long for us to debate those qualifications. It is an example of government not fulfilling its constitutional mandate because the President nominates, and we are charged with voting on the nominees."

With their roles now reversed, both sides are accusing the other of hypocrisy.

"These are rules that have been in place for over 200 years, and [the Republicans] just want to change them to benefit themselves," Laura Gross, a spokeswoman for the Democratic National Committee, said in an interview this week. "If they don't like the rules they change the rules. It's an abuse of power, and it's an abuse of trust."

Sean Rushton is a spokesman for the Committee for Justice, a conservative group formed at the behest of Karl Rove and Sen. Trent Lott (R-Miss.) three years ago to promote Bush's judicial nominations. Rushton sees it quite differently.

"[The Democrats] are not trying to extend the debate," he said. "They're just trying to change the confirmation standard from a bare majority of 51 to 60. What they really want is a minority veto power where any minority of 41 senators can essentially dictate what happens."

The side with the best public relations machine will likely win the rhetorical war. As that Washington Post poll suggests, at least for now, Democrats are winning. A strong majority of American adults frown on the potential elimination of the filibuster for judicial nominees.

"But by a 2-to-1 ratio, the public rejected easing Senate rules in a way that would make it harder for Democratic senators to prevent final action on Bush's nominees," Richard Morin and Dan Balz wrote last week of the Post poll. "Even many Republicans were reluctant to abandon current Senate confirmation procedures: Nearly half opposed any rule changes, joining eight in 10 Democrats and seven in 10 political independents, the poll found."

Even some eminent Republican Party stalwarts have urged Senate Majority Leader Bill Frist (Tenn.) to drop the fight.

"It is naive to think that what is done to the judicial filibuster will not later be done to its legislative counterpart," wrote former senators Malcolm Wallop (R-Wyo.) and James A. McClure (R-Idaho) in a Wall Street Journal op-ed recently. "The legislative filibuster . . . in the not-so-distant past was our only defense against the excesses of a bipartisan liberalism."

But Republicans, having a keen sense of the importance of rhetoric, have sought to redefine the so-called "nuclear option" as the "Constitutional Option."

Much of the debate turns on a question of historical interpretation.

"The Constitutional Option restores 214 years of Senate rules in which every judicial nominee with majority support receives an up-or-down vote," Republican National Committee Chairman Ken Mehlman wrote to Frist in a memo released to reporters.

The GOP has built its case around this historical argument. To most people who understand little of the arcane rules of the United States Senate, it might seem that Republicans are making the claim that the filibuster has never been used to block judicial nominees.

The left argues that there's a long tradition in the Senate of filibustering not just legislation, but judicial and executive nominees as well.

So which side is right?

I called Ralph Neas, president of the liberal People for the American Way, which has led the grass-roots lobbying effort against the repeal of the judicial filibuster. Neas produced a list of 30 filibusters of judicial and executive nominations, beginning with Supreme Court chief justice nominee Abe Fortas in 1968. Fortas, who was nominated by President Johnson, eventually withdrew his nomination, after it was filibustered by Republicans.

I asked Rushton about Neas's list and he nearly blew a gasket.

"This is dishonest, and you can't call yourselve an impartial observer and let them get away with that!" Rushton thundered. "It's total BS."

Essentially, Rushton argues that in all of Neas's examples, with the exception of Fortas, there was a cloture vote that ended debate and allowed eventual up or down votes on all of the nominees.

"You can't call it a filibuster if there was a successful cloture vote," Rushton said.

Furthermore, Rushton points out, it has often been Republicans who voted to end filibusters of Democratic nominees. For instance, he said, Sen. Majority Leader Trent Lott (R-Miss.) sought the cloture vote to break the attempted filibuster of then-Sen. Bob Smith (R-N.H.) against Clinton circuit court nominee Richard A. Paez in 2000. A majority of Republicans voted with Lott and the Democrats to close the debate.

Good points. So Republicans are right -- right?

Not so fast. Neas accuses Rushton of purposefully confusing the issue. "Of course [those other examples] were filibusters," Neas countered. "There are successful filibusters and unsuccessful filibusters. Because a cloture vote was successful doesn't mean there was no filibuster. That's why there was a cloture vote in the first place!"

Neas notes that Frist -- who is now leading the charge to eliminate the judicial filibuster -- joined with Smith to vote against ending debate and holding a vote on the Paez nomination.

Hmm. Good points. So Democrats are right -- right?

Essentially, Rushton and Neas, are doing what they're supposed to do -- representing their sides of the debate, cherry-picking facts that help them do that. Rushton is correct that Fortas was, prior to Bush's term, the last judicial nominee to withdraw because of a filibuster. Neas is also correct that members of both parties have filibustered, even if some of those filibusters were ultimately unsuccessful.

Both sides are also sparring over the concept that a president should have a right to chose whom he wants on the bench, just as he has a right to pick his Cabinet. But even this argument is fraught with inconsistencies.

For instance, Rushton acknowledges that during the Clinton years Republicans successfully used other tactics to keep nominees from an up or down vote, including the "hold" technique in which one senator basically holds up a nomination. But Rushton argues that a hold can be overridden by a straight majority of senators and thus can't be exploited by the minority.

What Rushton doesn't mention is that for most of Clinton's term, Republicans were in the majority in the Senate -- thus the hold was used to thwart a president's nominees without an up or down vote.

If polls are right, the message that voters seem to prefer is that in this great democracy of ours, power is leased, not owned. If historical trends continue, Democrats could conceivably be back in charge of the Senate after next year's midterm elections (although most Beltway insiders aren't betting on it). Since World War II, the president's party has lost on average six seats in the U.S. Senate in second-term, midterm elections. Six GOP losses would put Republicans back in the minority.

Imagine how much fun the Democrats would have trampling over the minority in a filibuster-less Senate if they won the presidency in 2008 as well.