End Judicial Obstructionism

As proved to be the case with many of the members of the 1980 and 1994 classes, those senators who come to power in watershed elections often do not fare well in their re-election campaigns because they were the product of a zeitgeist that no longer existed.

This freshman class, although they benefited from President Bush putting himself on the line, could have stood on their own. Two members, Elizabeth Dole, R-N.C., and Lamar Alexander, R-Tenn., are former Cabinet members. Alexander had also been a two-term governor of Tennessee.

John Cornyn, R-Texas, had been a judge and the attorney general of a large state. Norm Coleman, R-Minn., had been mayor of the second-largest city in his state, and four new senators – John Sununu, R-N.H., Saxby Chambliss, R-Ga., Lindsey Graham, R-S.C., and Jim Talent, R-Mo. – had served in the House when Republicans were in the majority.

The last group is significant because they learned that it is possible for Republicans to exercise power. Considering the razor-thin margins Republicans had in the 105th, 106th and 107th Congresses, they did remarkably well thanks to the skilled leadership of now Majority Leader Tom DeLay, R-Texas, who is intensely disliked by the minority Democrats precisely because he does not hesitate to use his power for the common good whenever it is necessary.

This freshman Senate class – the four former House members in particular – is very frustrated with the Republican-controlled Senate. Sen. Jim Talent of Missouri, by far the most cerebral member of his class, commented recently that it is the culture, rather than the rules, which is keeping the Senate's leadership from accomplishing meaningful things.

It is true that even the most solid conservatives have convinced themselves that nothing can be done about the current situation. They wring their hands and insist that it takes 60 votes to pass anything, and since Republicans can almost never muster that many votes, the ball game is over.

Right now the minority Democrats are filibustering two appeals court nominees and appear ready to filibuster a district court nominee for the first time in history.

The Senate leadership has convinced itself that there is no way out of this situation. The most support that they have been able to muster is 55 votes. Some have suggested that what is needed is a round-the-clock filibuster, but that means all 51 Republicans have to be ready for quorum calls in the middle of the night. If as many as a single senator were absent,Republicans could lose control of the floor.

I have suggested that President Bush make the blocked nominations his top priority and campaign hard in the states where senators might be persuaded to switch their votes on cloture, thus allowing an up or down vote on the judicial nominees.

But the White House is tied up with tax cuts now and isn't inclined to make judgeships top priority.

Talent suggests there is another way out if you could change the mindset of his caucus to the point where Republican senators would convince themselves that they could use their power to act.

The Talent solution goes like this: After a cloture vote is lost for lack of 60 votes, a senator would move to appeal the vote on the grounds that it is unconstitutional.

Why unconstitutional? Because the minority is requiring 60 votes for judicial nominations, yet the Constitution is very clear about when super-majorities are required. Approval of judges is not one of them.

The parliamentarian would most likely rule the motion out of order. (He is a real problem and should be fired by Senate Majority Leader William Frist). His ruling would be appealed, and if all 51 Republican senators held together, his ruling would be overridden.

Thus, having taken back control of the process, the Senate majority leader would move to have the pending nominations considered, which would only need a simple majority vote for approval and which could be readily obtained. The GOP would have taken back control of the process and would be confirming the best of President Bush's nominees.

Now of course, Republicans would have to be prepared for screams of anguish from the minority, echoed by the national media. But who cares?

See, that's the problem. In their current mindset, many Republican senators, and not just liberals, worry about what is written on the editorial page of the New York Times, or said on the CBS Evening News with Dan Rather.

These guys don't yet get it. Fewer and fewer people rely on newspapers and the traditional print media for their information. Most people get their news about politics and government from the broadcast media. Conservatives dominate talk radio, and the Fox News Channel is the fastest-growing channel in news/talk television.

Then there is the Internet. All the big Web pages are conservative. The liberal media are in a state of significant decline.

The Republican senators can get by with doing what Sen. Talent suggests and survive politically. The current culture of the Senate, however, says otherwise. That's why Sen. Talent says it's not the rules but the mindset that is holding back his fellow Republicans in the Senate.

It's time the Senate Republican caucus faced up to this problem. If they can finally get into the correct mindset, they can stop the whining about how powerless they are and at last use their power for the good of this country.

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