Nuclear rumblings

Another Republican acknowledges his party's past sins on judges. Senators from both sides work toward a compromise, but Frist and his allies on the far right aren't giving up yet.

Published May 10, 2005 12:39PM (EDT)

Here's a proposition for the mainstream media. Somewhere in every story about the nuclear option, drop in a sentence like this: "Senate Republicans, who prohibited more than 60 of Bill Clinton's judicial nominees from ever reaching the Senate floor, are seeking to change the rules of the Senate because Democrats are blocking seven of George W. Bush's nominees."

Maybe it's wishful thinking -- OK, it is wishful thinking -- but the thing is, Republicans in the Senate are making it harder and harder to ignore the fact that Republicans in the Senate protest just a little too much about the treatment of Bush's judicial picks. Republican Sen. Chuck Hagel 'fessed up Sunday, when he acknowledged that the Republicans' blockage -- through blue slips and other methods -- of more than 60 Clinton nominees means that Republicans' "hands aren't clean" on the issue of judges. Then, in a floor speech Monday, Republican Judiciary Committee Chairman Arlen Specter followed suit, saying that, over time, each party "has ratcheted up the ante in delaying and denying confirmation to the other party' presidential nominees."

And when the Republicans' weren't acknowledged their past sins over the last few days, the Democrats have been doing it for them; they're circulating a memo describing every Republican senator's voting record on filibusters. You can look up Bill Frist there: He voted against cloture -- in other words, in favor of filibustering -- Richard Paez, a Clinton appointee to the U.S. Court of Appeals for the Ninth Circuit. Frist won't come clean about the vote. He says it was just about "scheduling," which is true to the extent that Republicans wanted to schedule the Paez vote, oh, never. And he says that judicial nominees with "clear majority support" have never been denied up-or-down votes on the Senate floor, which is true if you just don't include the dozens of Clinton judges the Republicans prevented from getting out of the Senate Judiciary Committee -- and if you dont count failed efforts like Frist's own unsuccessful attempt to block the Paez nomination by filibuster.

By killing the Republicans' credibility on their own record, the Democrats hope to force Frist to back away from the nuclear option or to peel off enough Republicans that defeat or compromise become the only options. So far, the Democrats seem to have the upper hand, at least in the public relations game. They've got Republicans like Hagel and Specter admitting their sins, and they've got Frist looking intransigent: When Harry Reid told Frist Monday that the Democrats were ready to move ahead with a floor vote on yet another appellate court nominee, Frist refused, saying he wanted votes on everyone or no one.

If Democrats, with the help of some moderate Republicans, can paint the GOP as both inflexible and hypocritical on judges, a compromise like the one Trent Lott and Ben Nelson have been working may finally come together. Roll Call said Monday that the two senators were close to a deal that would avert Frist's plan to kill the minority's right to filibuster judicial nominees. But this morning, The Hill quoted Lott to the effect that senators aren't close to a deal. Roll Call says the deal would involve a handful of Democrats' agreeing to support floor votes on four of the seven blocked judges -- and not to filibuster future Bush nominees except in "extreme circumstances" -- in exchange for a guarantee that a handful of Republicans would deny Frist the votes he needs for the nuclear option. But now, The Hill says, the "extreme circumstances" language has shifted; under the deal now being discussed, the participating Democrats would have to agree not to support filibusters unless a particular nominee was "extremely controversial." We're not sure we understand the difference between "extreme circumstances" and "extremely controversial," but it's a distinction that must matter to somebody. Something else that matters, and is apparently unresolved: Just what the Democrats would have to promise in terms of the blocked nominees. Lott told The Hill that the four-out-of-seven plan isn't good enough: "How do you pick the three?" he asked. And Frist seems unlikely to accept anything less than a floor vote on every Bush nominee, at least until someone shows him that he can't get it or that the religious right will forgive him for not trying.

And that last part -- room to negotiate from the far right -- doesn't seem to be there quite yet. James Dobson and others on the religious right say that the question of judicial nominees is the single most important issue in decades. In a radio appearance Monday, Dobson said: "Nothing good happened in November, only the potential for something good." And no less of an authority on the federal judiciary than Rush Limbaugh has now declared that whether Republicans force a vote on the nuclear option -- not whether they get more judges confirmed, but whether they force the vote -- should be a litmus test for the party faithful. "We want the Senate Republicans to defend the prerogatives of this president as in every past president and we want a vote," Limbaugh said on his show Monday. "We want a vote on changing the filibuster so we know where each of these senators stands on such an important issue."

But Rush, we know where they stand already. Republican senators, by and large, support the idea of blocking judges when the a president from the other party is doing the nominating. They oppose it when the president is one of their own. You could look it up.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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