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Constitutional Option: Gang of 14 Won the Battle, Not the War

Tuesday, 31 May 2005 12:00 AM

Senator Frist was taken by surprise when the Gang of Fourteen announced its deal the night before the scheduled cloture vote, which would have triggered the constitutional option. Frist brilliantly brought along initially reluctant senators such as Pete Domenici, R-N.M., who has been in the Senate since 1972, Ted Stevens, R-Alaska, a senator since 1968, and Arlen Specter, R-Pa., a senator since 1980.

At first, when these and other "old bulls" indicated they would oppose the constitutional option, the Washington wags insisted they could not be brought around. Frist didn't believe that. Frist, along with Martin B. Gold, a Washington lawyer and an expert on Senate rules, who worked for former Senate Majority Leader Howard Baker Jr., R-Tenn., visited every office to brief senators on the constitutional option.

Most senators believed some of the propaganda spread by liberals to prevent a vote to restore the 215-year Senate practice. One by one, they quietly supported Frist's initiative. Senator John W. Warner, R-Va., long on the prerogatives of individual senators, first elected in 1978, never committed. Frist counted Warner among the senators who would oppose his effort. So also he counted John McCain. Graham and DeWine came out of nowhere. McCain took over the leadership of the so-called "centrists" and made the final deal, which was crafted in his office.

In the first battle over the 2008 presidential nomination on the GOP side, McCain defeated Frist. However, McCain won the battle, not the war. For one thing, this issue will not be forgotten. Even political activists have a memory of approximately six months. Yet occasionally there is an issue which everyone remembers. The constitutional option is one such issue.

It is why two other potential candidates for the GOP nomination, Senators George Allen, R-Va., and Chuck Hagel, R-Neb., denounced the deal. The deal is anathema to grassroots conservatives, the kind of folks who would be elected delegates to the 2008 nominating convention. They will not forget it. Their anger, shock and disappointment and, in many cases, desire for payback are too great to be forgotten, regardless of the intervening events in the next three years.

That John McCain will not be supported by these activists is a weak and unrealistic statement. John McCain will be actively opposed by grassroots activists who worked heartily for passage of the constitutional option.

The constitutional option remains on the table. Senator Frist promised that if Democrats revert to their usual behavior, he would not hesitate to reject that option. He needs two more Republicans to make it work. He needs 50 votes and the vice president's vote to have the majority required to insure that a simple majority could confirm federal judges and Supreme Court justices.

Both Senators Graham and DeWine warned that if Democrats break the agreement, they won't hesitate to return to their original commitment. They may have reason to want to do so. Several pro-family groups that worked diligently on this issue are making life miserable for both senators back home.

Ohio Senator DeWine's son Pat could suffer the wrath of pro-family groups in his congressional race to succeed Rep. Rob Portman, R-Ohio, who resigned to become U.S. trade representative. Pat DeWine has led by double digits in the race for the GOP nomination and thus is certain to win the election to replace Ambassador Portman. Even though Pat DeWine is far more conservative than his father, some voters say that they must teach his father a lesson by working against his son. He still is favored over former Republican Rep. Bob McEwen and others, but he may not have the cakewalk he expected.

Senator John Warner, who may not run in 2008, said he might vote for the constitutional option if the Democrats continue to practice unacceptable behavior toward judicial nominees. So Frist could win that battle after all.

When these self-professed Saviors of the Republic announced their deal, the media went wild. Now we again will have comity in the Senate. Comity existed when Republicans capitulated to Democrats, who prevailed on virtually every issue.

The media hate the "poisonous partisan atmosphere" in the Senate because Republicans have ignored Democrats during negotiations and have proceeded as if they won. The ink was hardly dry on the praiseworthy commentaries lauding the return of comity when the Bolton nomination came up for a vote. Because Democrats filibustered that vote, Bill Frist was four votes short of getting cloture or stopping the debate. Bolton will win an up-or-down vote. It is simply that Democrats won't let the Senate get that far. So much for comity.

What is most dangerous about the agreement put forth by the Gang of Fourteen is that it basically demanded that President George W. Bush recommend any Supreme Court nominee to them ahead of time. Subsequently, the Gang would advise the president about which Supreme Court nominee would be filibustered and which would be approved by a super-majority vote (60 plus votes). That request would put this cabal rather than the president in charge of who would sit on the Supreme Court.

The Gang of Fourteen said it only would filibuster a Supreme Court nominee in "extraordinary circumstances." What is the definition of "extraordinary circumstances"? Any nominee who has a conservative record of any kind. It is not merely pro-life that is the problem. One nominee the Democrats of the Gang of Fourteen vow to filibuster is disliked by radical environmentalists.

President Bush made judges an issue in the campaign. The people elected him to select nominees for the bench. The voters also gave the nation a Republican-controlled Senate with a 55-member majority. Only the use of the filibuster means that a Bush nominee must obtain 60 votes for confirmation.

Let us pray that Democrats revert to form before the president has a vacancy on the Supreme Court with which to contend. Then Senator Frist could detonate the constitutional option. President Bush could appoint whomever he believes is best for the nation rather than worry if his nominee could get 60 votes to sit on the high court.

Paul M. Weyrich is the Chairman and CEO of the Free Congress Foundation.

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Senator Frist was taken by surprise when the Gang of Fourteen announced its deal the night before the scheduled cloture vote, which would have triggered the constitutional option. Frist brilliantly brought along initially reluctant senators such as Pete Domenici, R-N.M.,...
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