Amid Hyperbole on Senate Floor, Some Talk Sense

Posted May 20, 2005 at 5:07pm

Of all the over-the-top speeches delivered during the Senate’s “nuclear” option debate, I can’t help but single out Sen. John Kerry’s (D-Mass.). And, as a snake-bite antidote, Sen. Arlen Specter’s (R-Pa.).

Kerry’s speech, delivered on the floor Thursday, was titled “Time for Profiles in Courage.” In it, the 2004 Democratic presidential candidate declared that “this is a dangerous time for our democracy.”

[IMGCAP(1)]He charged that the “Republican leadership is determined to deny the minority the right to hold the executive responsible for lifetime appointments to the judiciary.

“It’s about George Bush and Karl Rove and the Republican leadership and their quest for absolute power over the Supreme Court and this Congress,” he declared, appealing to Senators that they demonstrate independence of judgment.

“Script and sound bite should not dictate what happens here,” he said. “Conscience and principle should dictate what happens here. There must be Senators prepared to stand up and do their duty as Senators of the United States, not Senators of their party.”

As I sat listening to Kerry, I thought, “Amen to that last thought — but if you believe it, why are you here making this partisan speech? Why aren’t you heading for Suite 241 in the Russell Senate Office Building?”

There, in the office of Sen. John McCain (R-Ariz.), the real Senate independents — six Democrats and six Republicans — were gathering to fashion a compromise that could avoid parliamentary nuclear war.

Kerry, by contrast, was following the Democratic Party’s script — to hyperbolic extremes. The idea that President Bush is striving for “absolute power” is simply hysterical.

Bush won the presidency. His party controls both houses of Congress. He wants to appoint judges of a conservative persuasion.

He’d certainly like his party to dominate the government, but this is scarcely the “absolute power” that Kerry claimed the framers designed the U.S. Constitution to prevent.

The kings of old Europe had that. Dictators have it. U.S. presidents don’t. If they did, Democrats would have held “absolute power” from 1936 through 1952 and from 1960 to 1968. They didn’t, and Bush can’t have it either.

A ruler with “absolute power” would impose an “ownership society” by fiat. Bush is having difficulty getting Social Security reform through a Republican Congress.

It’s true that Republican rhetoric, too, has gone over the top on the Senate floor. Senate Majority Leader Bill Frist (R-Tenn.) accused Democrats of trying to “assassinate” Bush’s judicial appointees by filibuster. Sen. Rick Santorum (R-Pa.) compared the Democrats to Hitler.

Both sides have claimed that the other is menacing the U.S. Constitution. Democrats claim that the nuclear option — which would deprive the minority the right to filibuster judicial nominations — would “violate the constitutional principle of checks and balances.”

Republicans claim that Democratic filibusters have imposed an “unconstitutional” 60-vote threshold for judicial nominations.

Talking sense in the face of these hyperboles, Harvard law professor Charles Fried, solicitor general in the Reagan administration, wrote in The Boston Globe last week that “this is really a political fight, not a constitutional fight” and “the public should not be confused by bogus claims of constitutional principle.”

The constitution, he pointed out, “does not say one word about filibusters,” though he said it’s “a fair inference” that, because no super-majority is specified for approving nominations, the framers anticipated they would be subject to majority vote.

At the same time, Fried observed that Republicans, for all their protestations about its unconstitutionality, would surely resort to the filibuster in the future when a Democratic president makes judicial nominations.

Specter’s speech on Wednesday was a bracing reality check. The filibuster controversy has not arisen, the Judiciary Committee chairman said, because Democrats really believe that Bush’s nominees are unqualified.

“It is payback time for the Republican treatment of President Clinton’s nominees. While there have been a few scattered cloture votes in the history of the Senate,” he said, “it is totally unprecedented for a party to engage in such a systematic pattern of filibusters.”

He traced an increasing pattern of the dominant party’s blocking appeals court nominations by means other than the filibuster back to the Reagan years and conceded that Republicans “exacerbated the pattern” under Clinton.

And he said that President Bush, too, had broken precedent by making recess appointments for judges rejected by the Senate. “The Senate has arrived at this confrontation by exacerbation, as each side ratcheted up the ante. … Meanwhile, the far left and the far right are urging each side to shun compromise.”

Privately, he said, many Republican Senators say they fear the nuclear option would undermine minority rights in the Senate, and many Democrats are saying routine filibusters impair the prerogatives of the president.

Yet both parties, Specter said, have worked themselves into a confrontation akin to “mutually assured destruction, accurately described by its acronym, MAD.”

It’s not the best possible solution that a minority of just 12 Senators would impose a compromise on the chamber — no filibusters, no nuclear option. But it would pull the Senate back from the brink.