Tags: Democrats | Will | Filibuster | Next | Supreme | Court | Nominee

Democrats Will Filibuster Next Supreme Court Nominee

Sunday, 25 September 2005 12:00 AM

In 1969 I had dinner one evening in the Senate Dining Room with Senator Robert P. (Bob) Griffin, R-Mich., then Republican whip. I had run into him and began asking questions about the effort to defeat President Lyndon Baines Johnson's nomination of Justice Abe Fortas to be chief justice. Congress was in session that evening and Griffin was on duty, so he asked me if I would like to join him for dinner. Heady stuff for a 26-year-old, but I learned a great deal.

Griffin's strategy to defeat Fortas worked. (Essentially it was something of a brief filibuster, allowing time for disclosures of Fortas' financial irregularities, causing Johnson to withdraw the Fortas nomination for elevation to chief justice and Fortas to resign as an associate justice.)

Democrats were outraged. They vowed revenge. They wanted to reject Judges Warren Earl Burger and Harry A. Blackmun when President Richard M. Nixon nominated them. But they didn't have enough negative information about them. So the Senate waited until President Nixon nominated Judge Clement F. Haynsworth Jr., an outstanding federal appeals court judge, for the Supreme Court.

Liberals knew that Nixon promised Senator J. Strom Thurmond at the 1968 Republican Convention in Miami that Thurmond would have a say about the vice presidency and the Supreme Court. I attended that convention. My boss, Senator Gordon L. Allott, was Colorado Chairman for Nixon. Thus, I heard several confidential discussions.

Nixon people felt threatened by Governor Ronald W. Reagan, who made a last-minute bid for the presidency. Numerous delegates, especially delegates from the South, wanted to support Reagan.

Nixon made his hasty deal with Thurmond, thanks to the political skills of Thurmond aide Harry Dent, who later worked in the Nixon White House. Thurmond informed delegations from the South and the Border States that Nixon had made promises to him which they would like. These delegates especially disliked Chief Justice Earl Warren and his Court.

It worked. Southern delegates maintained their loyalty to Nixon. Reagan was prevented from making a deal with New York Governor Nelson A. Rockefeller to stop Nixon from winning on the first ballot. Thus Nixon's Southern Strategy, the brainchild of Republican strategist Kevin Phillips, would be implemented.

Judge Haynsworth's appointment was part of that strategy and the Senate liberal Democrats knew it. They dug up an alleged Haynsworth conflict of interest and Big Labor focused upon an alleged anti-union Haynsworth vote. With the help of some liberal Republicans, he went down to defeat.

Nixon then nominated Federal Appeals Court Judge G. Harrold Carswell. He had belonged to a segregated club and there were other problems. He also went down to defeat. The liberals were smug. They thought they had kicked defector Strom Thurmond (he had switched parties during the 1964 election) in the teeth.

It almost seems as if these same liberal Democrats and their successors have remained angry all these years. They were angry when President Reagan nominated Judge Robert H. Bork. They were angry when President George Herbert Walker Bush nominated Judge Clarence Thomas. Now it is President George W. Bush they hate. They are determined to do him in.

The show we have been witnessing, where Democrat after Democrat has come out in favor of Judge John G. Roberts Jr. for chief justice, is just a game. They knew Roberts had the votes to be confirmed. They knew in his case the Gang of 14 was holding firm so there would be no filibuster. So they couldn't stop Roberts although they would have liked to.

What to do? The minority leader and hard-core liberals will vote no, thus satisfying the base of their party. The others are piously saying that they will reluctantly support Roberts, who looks at this stage to be getting confirmed by at least 70-30. That way they seem reasonable. That way they don't seem partisan.

Now comes the president's pick for the Sandra Day O'Connor seat. She has agreed to continue to sit on the Court until a successor is confirmed. Unless the person the president picks is willing to say "Roe v. Wade should not be overturned" and "Yes, I find that it is discrimination to require that marriage should only be between one man and one woman," the president's choice will be filibustered.

I don't care how brilliant. I don't care about the nominee's record, background or qualifications: Short of saying what I indicated would be required (which, if the president's nominee did say it, would blow up his coalition in about 30 seconds), there will be a filibuster. The Gang of 14 will buckle.

You hear it in what those who have reluctantly agreed to support Roberts are saying. They are promising that the next nominee will have a much tougher time and will be required to answer questions on his or her general view of issues. Roberts, as well as Ruth Bader Ginsburg, refused to hint as to where they would come down on cases which might come before the Court. They were right to do so.

This nominee is going to get a grilling by the likes of Senators Biden and Kennedy and Schumer that will make a grownup cry. They will end up getting personal before they announce that Bush nominee [fill in the name] is not qualified. They mean to bring this next nominee down and with that nominee the president of the United States.

It all comes down to whether Bill Frist, the Senate majority leader, has the votes for the Constitutional Option. If you would recall, Frist was about to detonate the Constitutional Option (called by liberals the Nuclear Option) when the Gang of 14, led by Senator John S. McCain III, R-Ariz., pulled the rug out from under Frist and announced that there would be no filibuster of Bush judicial nominees except under extraordinary circumstances. An enterprising reporter for The Washington Times asked each what constituted extraordinary circumstances and each gave a very different reply.

So far the deal has held, which is why Judges Janice Rogers Brown (my favorite for the Supreme Court), Pricilla Owen and others are on the courts of appeal and why Roberts will not be filibustered. The seven Democrats, however, must prove to their base that they are still genuine Democrats. That is why at least some of them will find the next Bush nominee an extraordinary circumstance.

At that point Bush and Frist have one last shot. Frist can detonate the Constitutional Option, which will change the rules in the middle of the session to insure that federal judicial nominees can get confirmed with 51 votes and not the 60 votes required to overcome a filibuster.

Senator Lindsay O. Graham, R-S.C., has said he will return to the fold if the Bush nominee is qualified and the Democrats filibuster. Likewise Senator Michael DeWine, R-Ohio. Senator John W. Warner, R-Va., has said maybe he will return. Even Senator John McCain, who put the Gang of 14 together and who had come out swinging against the Constitutional Option, has suggested there was a chance he might return to the fold.

Will Frist, then, have 50 votes to allow the vice president to break the tie and change the rules? It is not clear. Some constitutional experts believe that if the Senate changes its rules for nominees it also will change its rules for a legislative filibuster. Others take the opposite view, a view to which I have subscribed.

I believe it is possible to separate the two. Senator Trent Lott, R-Miss.,, an expert on the Senate rules, says he isn't sure which way he will vote on this issue. Lott carries weight. If he votes no, he is likely to take a number of senators with him.

On the assumption that Bush appoints a nominee we can cheer about, or at least happily tolerate, it could be all-out war. I suppose it is remotely possible that the Gang of 14 would hold. If they did hold, then the era of trying to defeat Bush judicial nominations would be over. If that were to happen, Frist would not be required to exercise the Constitutional Option.

Or if the nominee were filibustered, he or she might ask that the nomination be withdrawn after several unsuccessful cloture votes. Then Bush would nominate someone else. Same result. Then another. Until finally the public would sour on the idea of filibustering Bush Supreme Court nominations.

Let us hope, therefore, this war is widely covered and with a little more objectivity than is reported about Iraq. Right. And the moon really is made of green cheese ...

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

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In 1969 I had dinner one evening in the Senate Dining Room with Senator Robert P. (Bob) Griffin, R-Mich., then Republican whip. I had run into him and began asking questions about the effort to defeat President Lyndon Baines Johnson's nomination of Justice Abe Fortas to be...
Democrats,Will,Filibuster,Next,Supreme,Court,Nominee
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2005-00-25
Sunday, 25 September 2005 12:00 AM
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