Barely four months into their tenure, two freshman Republicans are leading a charge to file a lawsuit against the very Senate they now serve in, challenging the constitutionality of Democratic filibusters of President Bush’s judicial nominees.
Sens. Lindsey Graham (S.C.) and Saxby Chambliss (Ga.), both elected to their seats last year while serving in the House, are actively researching the constitutional and procedural mechanisms for filing a suit against the Senate. Other Republicans may join the effort soon.
"Lindsey Graham and I have talked seriously and extensively about this," Chambliss said, noting that it would be some time before a final decision is made and the lawsuit actually filed. "We’re thinking through it, we’ve got people researching it."
A lawsuit is one of several options Senate Republicans are considering to try to break the ongoing Democratic blockade of Bush’s circuit court nominees, and their move comes as the GOP tries to retool its message in the run-up to what they are billing as "Democrat Obstruction Day."
That’s Friday, May 9, the two-year anniversary of the day Bush sent to Capitol Hill his first batch of judicial nominees, a group of conservative judges, lawyers and legal scholars who have collectively met a tough match in Senate Democrats. Miguel Estrada, nominated that day to the U.S. Court of Appeals for the D.C. Circuit, and Texas Supreme Court Justice Priscilla Owen, nominated to the 4th Circuit, have been blocked by a Democratic filibuster this spring that has left their nominations on life support.
Other nominees, including the previously rejected U.S. District Judge Charles Pickering of Mississippi, are likely to face a similar filibuster from Senate Democrats, who contend that Bush is trying to pack the courts with lifetime appointees so conservative they will destroy critical civil rights protections.
Senate Republicans have grown increasingly frustrated in their inability to beat back the filibusters, as Democrats have contended there has been no public outcry resulting from their actions, despite week upon week of GOP efforts to portray Minority Leader Tom Daschle (D-S.D.) and other Democrats as obstructionists.
The lawsuit option may be their last hope of a long-term victory in defeating the filibustering of judges, although it’s unlikely the courts could handle something quickly enough to have any impact on the short-term battles currently being waged on the floor.
Conservative activists and some GOP Senators had been publicly mulling for weeks the constitutional question of whether Democrats can force a 60-vote majority for confirming a president’s nominees. But Chambliss and Graham’s decision to take the lead role in the legal assault on Democrats is somewhat of a surprise, given that they were only sworn into office on Jan. 7.
Somewhat mockingly, one veteran Democrat questioned how well the two freshmen really knew the chamber’s rules.
"They’ve only served here, what, about four months," said Sen. Byron Dorgan (D-N.D.), a member of Daschle’s leadership team.
But Chambliss and Graham hardly consider it a laughing matter.
They believe the Constitution clearly gives the Senate the mandate to "advise and consent" on a president’s nominees, meaning they can accept or reject judicial or Cabinet appointees. Republicans have noted that the section of the Constitution dealing with advise and consent directly follows after the section on international treaties, where it specifically spells out a requirement for a two-thirds majority for passage of such a treaty.
Since there is no such language regarding presidential appointees, the "implication" is that only a simple majority is needed for confirmation, Chambliss said. "Where it is silent means it only requires a majority vote."
Judiciary Chairman Orrin Hatch (R-Utah) noted that the filibuster is an internal rule. Because procedures for presidential nominees are referenced in the Constitution, Republicans believe that only the Constitution, and not internal chamber rules, has precedent, meaning a simple majority should rule.
Democrats, however, argue that the Constitution’s set no limits on any form of Senate debate, allowing for endless floor discussions on everything, including nominations. Historically, the Senate created the 60-vote cloture motion in 1917 to try to stave off filibusters, allowing for filibusters and cloture motions on all actions.
"It’s way off base to suggest filibusters are unconstitutional. ... It’s totally illogical," said Sen. Charles Schumer (D-N.Y.) at a Judiciary subcommittee hearing Tuesday on the nomination process.
Chambliss said the legal process could be a long and arduous one, noting that their staffs have not done much outside consulting with legal teams yet. "We will, but we haven’t at this point," he said. "Lawsuits take time, they take time to prepare."
It’s unclear how some of the procedures would work in such a case. Legally speaking, Chambliss and Graham would be suing the Senate — making themselves both plaintiffs and defendants in the case.
It’s also unclear who would be representing whom. In most cases against the Senate the Senate counsel’s office would be defending the lawmakers. Assuming the counsel’s office was to defend the institution against the Senators, Chambliss and Graham would need outside counsel, and they might have to dip into their campaign war chests to pay for lawyers.
GOP leaders cautioned that the lawsuit course is only one option. "It is only one of several options that could be pursued simultaneously," Majority Leader Bill Frist (R-Tenn.) said.
Republican Conference Chairman Rick Santorum (Pa.) suggested that an attempt to change internal Senate rules would probably be pursued first, or at least would be the preferred route for getting Estrada, Owen and others confirmed.
"All of those options are being considered," Santorum said.
But changing the rules of the chamber would be a particularly tall order, as it requires a two-thirds majority. Dorgan said flat out there won’t be any changes: "There’s not a ghost of a chance."
Other Republicans have discussed the possibility of changing the rules in a way that would require only a simple majority, similar to the way the chamber is reorganized after each election. But such a step would be an amendable vehicle — leading to the likely possibility that Democrats would filibuster the GOP attempt to end Democratic filibusters of judicial nominees.
The only other outlet Republicans have, for now anyway, is continuing to ratchet up the political pressure. Throughout this week they have arranged a series of events designed to highlight the issue, which they admit hasn’t had much resonance in previous months because the public was transfixed by the war in Iraq and ongoing terror alerts.
National Republican Senatorial Committee Chairman George Allen (Va.) said the issue is not a top-tier one, but it has helped the GOP make progress in reinforcing a negative Democratic image of blocking the president. He said the nominees issue is one that will get more attention "now that the military action is over."
Tapping a football analogy to prop up the GOP’s contention that it was amassing small gains on the judicial issue, Allen said: "We’re getting four yards every play. If you’re getting four yards every play — even if the field’s 300 yards long — you’re going to keep moving down the field."