Ideological filibuster clash expected to begin Wednesday



BY DICK POLMAN

Knight Ridder Newspapers

PHILADELPHIA - (KRT) - At the dawn of the American experiment, James Madison envisioned the creation of a U.S. Senate that would operate with "wisdom" and "stability." It would be impervious to the emotions of the masses, "an anchor against popular fluctuations." It would build "a necessary fence" against majority will, by protecting minority rights.

But Madison's formula, largely honored in practice, may be imperiled by the showdown over President Bush's judicial nominees, an ideological clash slated to begin Wednesday - and potentially end next week with a historic vote that could fundamentally alter the role and character of the institution itself.

Reputedly "the world's greatest deliberative body," the Senate is on the verge of being engulfed by the political passions it was designed to withstand. A chamber that once valued compromise and moderation now appears hostage to the well-heeled ideological interest groups, on the left and right, whose partisans will accept nothing short of total victory.

The majority Republicans are poised to change Senate rules and erase the Democrats' ability to block pending Bush nominees.

But if GOP senators vote to erase the filibuster - a time-honored tactic that allows dissidents to conduct extended debate to prevent a vote - many analysts believe over time the Senate will mirror the House of Representatives, a place designed to favor majority rule over minority rights. Therefore, Madison's "fence" would be trampled.

Senate Republicans say, however, that they won't alter the chamber's character, that they intend to eliminate the filibuster (the "nuclear option," as coined by Sen. Trent Lott of Mississippi) only when used against judicial nominees. They argue Bush's stymied nominees should be sent to the floor for a final vote, in accordance with the constitutional proviso that senators "advise and consent" on a president's choices.

But since Democrats see that argument as part of a plot to pack the courts with "extremist" judges, odds seem slim that a nuclear showdown can be averted.

In the words of legal commentator Stuart Taylor Jr., the warring Senate camps, rather than stressing civility, are now behaving "like testosterone-crazed teenage drivers locked in a game of chicken."

That's because, unlike their Senate forebears, these lawmakers are more closely attuned to the passions of their activists. It's noteworthy that whenever the few remaining moderate senators have floated compromises, the interest groups have reacted with scorn.

On the left, Nancy Keenan, president of NARAL Pro-Choice America, told the Associated Press, "You cannot back down from bullies." On the right, Concerned Women for America sent out e-mail Tuesday warning against "soft-centered sellouts."

Ross Baker, a Senate expert who has worked in the chamber, said if the GOP nixes judicial filibusters, "the Senate would become a vastly inferior institution that would not reflect what the Framers had in mind.

"Among other things," said Baker, a political analyst at Rutgers University, "the fallout from the nuclear option - and fallout is the right word, because it would be toxic - will hurt relations between senators. It would be tougher for them to deal with each other across party lines, make it tougher to get things done."

Steven Smith, a Senate expert at Washington University in St. Louis, and an author on six books about congressional politics, sees the nuclear option as "a potentially dangerous precedent" that would encourage future senators to eliminate a minority's right to filibuster on a whole range of issues.

"Nobody in leadership, on either side, is taking the high road," Smith said. "Pure power politics are dictating their positions, and they're willing to just let the next generation of senators come in and pick up the pieces. ... The Senate was not designed to allow a majority to simply get its way."

It would be wrong to imply that the Senate has always been a rarified haven of wisdom, far from the "madding crowd." The dominance of communist-hunter Joseph McCarthy during the early 1950s argues against that.

And the passions of the day have literally intruded on occasion; in 1856, Sen. Charles Sumner, a foe of slavery, was beaten senseless on the Senate floor by a cane-wielding Southerner (it was a visiting House member, but he was applauded by the Southern senators who witnessed his attack).

But civility and compromise have generally been the norm. As recently as 1995, chamber experts counted 17 senators in both parties who often crossed over to vote with the other camp. That number was even higher for most of the last century, and few lawmakers felt compelled to resort to filibusters. The Senate averaged only one a year during the 1950s, 4.6 a year during the `60s and 11.2 a year during the `70s.

But Wednesday's showdown over judges and filibuster rules is essentially a product of the widening partisan divide.

The demise of Southern conservative Democrats and Northern moderate Republicans has tilted the Democrats leftward and the Republicans rightward.

A generation ago, it would have been unthinkable for the Democratic leader to call the president a "liar" and a "loser" (as Harry Reid has done) and for the Republican leader to stump for the defeat of his counterpart in the other guy's state (as Bill Frist did in South Dakota last year, against Tom Daschle).

"You end up with two senatorial parties that are personally distant from each other," Smith said. "Members are developing fewer friendships with each other, across party lines, and that makes it easier for their rhetoric to get out of hand" - which, in turn, provides fresh fodder for the special-interest groups that continually stoke their partisan supporters with e-mails and Internet ads. On the judicial showdown, the traffic has been particularly heavy.

Still, the fate of the nuclear option - and the future of the chamber - may well hinge on the small band of uncommitted Republicans. Some are moderates; others are traditionalists who have questioned the wisdom of altering Senate rules.

But if they're looking for guidance from moderate Americans, they may wait in vain, because the latest polls show that roughly two-thirds of the people aren't paying attention.

"It's still a highly esoteric debate," said Baker, "conducted entirely for the activists on the left and right who have a big stake in the outcome."

And it's the activists who will vote most heavily in the 2006 elections - yet another reason why lawmakers, employing hot rhetoric in the days ahead, may well test Madison's admonition that "coolness" shall prevail in the U.S. Senate.

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© 2005, The Philadelphia Inquirer.

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