Senate Republicans are preparing to bring out the heavy weapons against the filibuster, a Senate tradition that has its linguistic origins in the pirates who once captured ships and held their crews for ransom.
Senate Majority Leader Bill Frist, R-Tenn., says “tyranny by the minority” must end and he will do whatever it takes. That includes what some call the “nuclear option” to stop Democrats from using the filibuster to block President Bush’s judicial nominees.
The issue could cause a major rift in the new Congress that convenes next month.
Republicans insist that use of the filibuster to prevent votes on 10 judicial nominees in the last Congress was unprecedented and unconstitutional. Democrats say they will resist any attempt to eliminate what they say is a legitimate right of the minority that they have used judiciously.
“The filibuster is there. It should be used sparingly,” said Sen. Harry Reid, D-Nev., the incoming Senate Democratic leader.
Frist wants to change Senate rules to make it harder or impossible to filibuster judicial nominations. It now takes 60 votes to end debate and bring a nominee to a vote. Even with their new majority of 55, it is unclear whether Republicans can reach 60 votes on the most contentious nominees.
He has suggested several options. For example, reducing over time, from 60 to 51, the votes needed to cut off debate, or declaring that filibusters should not apply to judicial nominations. But it takes a two-thirds majority to change Senate rules, and Democrats are unlikely to go along.
More drastic would be the “nuclear option” of having the chair — with Vice President Dick Cheney presiding — declare that filibusters violate the constitutional duty of the Senate to give advise and consent on nominations. A ruling of the chair can be upheld with a simple majority vote.
Even that is not a certainty because of the importance Republicans, as well as Democrats, put on minority rights. Republican Sen. John McCain of Arizona said he would be more disposed to the rules change “if I believed Republicans would be in the majority forever.”
Sen. Arlen Specter, R-Pa., a moderate set to become the next Judiciary Committee chairman, said he would work to avoid filibusters. But he said there are relevant precedents for changing the rules with 51 votes. He said Sen. Robert Byrd., D-W.Va., the Democrats’ expert on parliamentary procedures, did it four times in the 1970s and 1980s.
For example, in 1987 Byrd successfully raised a point of order to change a rule being used by Republicans to delay proceedings. But Senate Democrats who have studied the rules say there has never been an instance where a simple majority has been used to change the rules with respect to limiting debate.
Democrats also argue that Republicans are trying to radically change a system that Democrats used sparingly, blocking only 10 of Bush’s judicial nominees while confirming more than 200 of them. They say Republicans blocked more Clinton administration nominees by not giving them hearings or votes in the Judiciary Committee.
Democrats also note that a filibuster in 1968 forced President Johnson to withdraw his nomination of Abe Fortas for chief justice of the United States. They said he was one of 14 Supreme Court nominees over the years who never got a confirmation vote.
The current Senate Judiciary Committee chairman, Sen. Orrin Hatch, R-Utah, has argued that Fortas does not count as a filibuster because it was supporters who did not want a vote when they knew he would lose.
With the Senate expected to take up one or more Supreme Court nominees in the next session, Hatch has led the charge in insisting that “the hijacking of the constitutional process of advice and consent” must stop.
Sarah Binder, a political scientist at George Washington University who has written about filibusters, said that while the tactic has long been a nuisance to the majority, the Constitution says the Senate can set its own rules, including raising the threshold for confirming a nominee.
The idea of talking a measure to death goes back to the Founding Fathers. An early instance occurred in 1790 when senators used the tactic to prevent Philadelphia from being named the national capital.
Binder said linking the filibuster with the Senate was an “accident of history.” In 1806, when the Senate was cleaning out its rule book at the advice of Aaron Burr, it left out a provision still adhered to in the House under which only a majority is needed to cut off debate.
The use of the term filibuster began to appear in the 1840s, derived from the Dutch word vrijbuiter, or free booter, and the Spanish filibustero, both referring to pirates.
Unlimited debate was the rule until 1917 when the Senate decided that a two-thirds majority could bring about “cloture,” or an end to debate. That was prompted by delaying tactics against President Wilson’s war measures that the president said had rendered the United States “helpless and contemptible.”
The filibuster was again used in the 1950s and 1960s to impede civil rights legislation. In 1957 Strom Thurmond launched the longest one-man filibuster in history, speaking for more than 24 hours.