Resorting to semantics

Frist's press secretary tries to explain how the Senate majority leader's vote to filibuster a judge's nomination in 2000 wasn't really a filibuster.

Published May 20, 2005 12:56PM (EDT)

If a group of Senate moderates can't reach a compromise agreement before then, Senate Majority Leader Bill Frist will arrange early next week for the presiding officer of the Senate to declare that it's unconstitutional to filibuster judicial nominees. There's just one catch: On March 8, 2000, Frist himself tried to filibuster a judicial nominee.

Earlier this week on the Senate floor, New York Sen. Chuck Schumer asked Frist about his vote in favor of filibustering Richard Paez, a judge Bill Clinton appointed to the U.S. Court of Appeals for the Ninth Circuit. Frist stammered through the beginnings of an explanation -- "Mr. President, the, in response, the Paez nomination ..." -- and then said he'd return to the Senate floor later to explain his filibuster vote further.

Frist hasn't done that yet, and his Republican colleagues -- the ones who go on railing about "unprecedented" and "unconstitutional" filibusters, despite the fact that Republicans led a filibuster of Supreme Court Justice Abe Fortas in 1968 -- seem to be either unaware or unconcerned about the contradiction in Frist's position. At a press conference Thursday, Salon asked Republican Sens. Pete Domenici and Ted Stevens how they squared Frist's attempt to filibuster a judicial nominee in 2000 with his claim -- and theirs -- that filibusters of judicial nominees are unconstitutional and unprecedented.

"Ask him that, ask the leader that," Domenici said. "We don't question his vote. It's our vote. I voted to close the debate [on Paez]. You ask him about his vote." Stevens, who had spent much of the press conference shouting about the Democrats' filibusters, chimed in: "We're not asking questions about other people. You're here to ask questions of us."

After the press conference, Frist's press secretary, Amy Call, approached us to try to explain how Frist's vote in favor of a filibuster in 2000 isn't inconsistent with his claim now that filibusters are inappropriate, unprecedented and even unconstitutional.

In 2000, Call said, "Individual senators voted against cloture. That's not what you're seeing here. What you're seeing is the leadership of the Democratic Party putting together filibusters." What ensued next was the following conversation in which we tried -- really, we did -- to understand why the Democrats' filibusters of judicial nominees are worthy of outrage from a man who once attempted to filibuster a judicial nominee himself.

If the issue is the Democratic leadership's role in the filibusters, would it be acceptable for 41 individual senators who are not part of their party's leadership to put together a filibuster?

What you saw with Abe Fortas is a bipartisan filibuster of Abe Fortas. I think it was like ... pretty evenly split.

It was led by Republicans and joined by some Democrats.

It was bipartisan. And that was an aberration in 200 years. What you're seeing here is different. What you're seeing is 10 [judges] -- what is it, seven, now? -- in two years be filibustered. And this is a changing of the way the Senate works.

But if ...

I'm not going to go into hypotheticals. I'm going to tell you what's happening, and what's happening is that the Democratic leadership is leading these filibusters in an effort to hold up these nominations and stop them.

I'm just trying to understand the moral outrage over a "leadership-led" filibuster as opposed to some other kind of filibuster.

Well, Paez and [Clinton nominee] Marsha Berzon were not filibustered. A cloture vote does not mean that they were filibustered. It means that the Senate as a whole decided to move them forward and the Senate as a whole moved them forward.

The Senate moved them forward over Sen. Frist's attempt to filibuster Paez's nomination.

I don't know that you can say that a vote against cloture is an attempt to filibuster.

But at the time, former Sen. Bob Smith put out a press release that said he was leading a group of senators -- a group that included Sen. Frist -- in an effort to filibuster Paez's nomination, in order to block Paez's nomination.

Well, that may be Bob Smith's interpretation. But at the end of the day, what you had was two parties working together to bring that nomination to a close, to bring it to an up-or-down vote.

So what matters is that Sen. Frist wasn't successful in filibustering Paez? Isn't this like someone who attempted to commit murder lording his morality over someone who actually succeeded?

No, because the difference is you have a majority leader and the leadership of the party who -- it's their job to work with the other party to bring these things forward. You can have a few people in the party voting against a cloture vote. That's OK.

So filibusters of judicial nominees are OK so long as they're not led by a party's leadership?

But it was not a filibuster. It was not a filibuster because [Paez] is a sitting judge.

He's a sitting judge because he was ultimately confirmed, which means, necessarily, that he had majority support. So that line that Sen. Frist uses -- that there have never before been attempts to filibuster judges who have "majority support" -- that line doesn't work anymore, right? There have been attempts to filibuster judges who have majority support, and in fact Sen. Frist participated in one of those attempts.

There was not an attempt to filibuster. It was a cloture vote to move the nomination forward. Bill Frist voted against Paez [when the nomination came up for a floor vote].

But first he voted against the cloture motion because he wanted to filibuster Paez's nomination.

No, because he did not agree that Paez should be a judge.

So what was Sen. Frist hoping to accomplish when he voted against cloture on the Paez nomination?

He was making his voice heard on that cloture.

And how is that different from what Sen. Harry Reid and the Democrats are doing now? Aren't they just making their voices heard?

Because it -- they are denying up-or-down votes to the rest of the Senate on these nominees who have majority support. So they are killing these nominees through the filibuster.

Which is exactly what Sen. Frist was trying to do in 2000.

But A) not as part of leadership. And B), had it gotten to the point that the cloture vote didn't go through, we could have a conversation about hypotheticals. It was clear that Paez was going through. It was clear that Paez had the 60 votes for cloture. So it doesn't necessarily matter that Bill Frist -- I mean, if it came to a point where he didn't have 60 votes for cloture, and then Bill Frist was part of that, then you would have had successful cloture, and you could have said that Bill Frist [would have] realized that [his vote] was going to stop this cloture vote, and [he would have] stopped it.

So attempts at filibusters are OK so long as they're futile?

Sort of, yeah.

By Tim Grieve

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

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