Senate Agrees to Filibuster Compromise
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GWEN IFILL: Joining us now are four members of the Senate who have weighed in on this debate. Two members who signed last night’s agreement: Democrat Ben Nelson of Nebraska, and Republican Lincoln Chafee of Rhode Island; and two members who still have their doubts: Republican Jeff Sessions of Alabama, and Democrat Charles Schumer of New York. Welcome to you all. Sen. Nelson, it seems surprising at the last minute last night that everyone moved off the dime. We heard in Roll Call – the Capitol Hill newspaper – today describe it as a stunning power grab by a group of mavericks and moderates and old bulls. What moved everybody off the dime?
SEN. BEN NELSON: I think everybody from the very beginning wanted to be able to do a deal. We recognized that this was a significant event about to come that would change the Senate forever, that would result in whatever comes from a nuclear option: Meltdown, fallout. But we felt that we needed to do something. And it was possible we could get more cloture votes to get up or down votes on the judges and at the same time preserve the valued tool called the filibuster for extraordinary circumstances. When it became clear that we had language together, we were all together on the agreement; signing it was just the last step.
GWEN IFILL: Sen. Chafee, I’m curious about what you thought about this from the other side of the aisle. I think some of the Republican senators in particular were describing the negotiations of the last few days as a floating crap game. How did it play out in the end?
SEN. LINCOLN CHAFEE: Well, I agree with Sen. Nelson. I think we all wanted to get to some point where we wouldn’t have to invoke the so- called “nuclear option” or constitutional option. I took Sen. Harry Reid at his word that he would shut down business in the Senate. And, as the previous clip showed, it’s a very difficult war going on in Iraq; we need to focus on that. We’ve got Social Security with the retiring of the baby boomers; we need to focus on that. Health care, energy — all important issues that I think that if this nuclear option had been invoked we wouldn’t be working on. We need to work on those in somewhat of a bipartisan way. And if this were to happen, there was no way that would occur. We would never get together and some of these issues would suffer. So this was a big day.
GWEN IFILL: But Sen. Chafee, why these three particular nominees? I think most Americans don’t know the difference between why these three and not others.
SEN. LINCOLN CHAFEE: Well, it’s a warm-up for the Supreme Court. I mean, I think we all recognize that. I think the two sides are jockeying in anticipation of a vacancy on the Supreme Court which are where all the issues ultimately end up.
GWEN IFILL: So, Sen. Nelson, does that mean that if a Supreme Court nominee comes who Democrats don’t like, you will be able to invoke your… the clause which allows you to filibuster in extraordinary circumstances?
SEN. BEN NELSON: I don’t think that the threshold is a nominee you don’t like. I think you have to have something that is extraordinary that would be beyond whether you agree or disagree with this candidate. Now, what constitutes extraordinary circumstances, well, I think Senators Collins and McCain said it best. They said you’ll know it when you see it. And I think that’s… that will be the test. As this process moves forward, I think if there are doubts about whether or not this particular candidate, this nominee will satisfy our test, there will be consultation back and forth among the members that have signed on to this agreement. I think we can work our way through it. I’m optimistic. This is not a contract; it’s an agreement, a memorandum of understanding based on mutual trust, trusting one another.
GWEN IFILL: Sen. Sessions, what’s right with this deal and what’s wrong with it?
SEN. JEFF SESSIONS: I think it was a deal that stuck, that made some progress for confirmation of judges in a rather significant way. The seven Democrats basically broke ranks with the systematic filibusters, said they would not filibuster except under extraordinary circumstances, and then agreed to support cloture for three really fine nominees that were really unfairly attacked, I felt, and should have gotten an up or down vote. So it was from that point of view good. I think the Republicans should be proud of Bill Frist who really moved the ball and had the 51 votes necessary to change the rule. And it was at that point that the Democrats agreed to enter into negotiations, so I think he really moved the ball forward in that way. We would have been better in my view of staying with him. I think a more principled agreement could have been reached but the Senate is the Senate. We’ve got an agreement that allows us to go forward. Hopefully it can reduce tensions. Hopefully it can reduce this pattern of unfair misrepresentations of judges’ records, their speeches and their backgrounds. I think that will be good for the Senate and maybe it will spill over to other issues.
GWEN IFILL: Sen. Frist said that he wanted up or down votes on all of these judicial nominees — the total I think came to seven who were in the mix here. That’s not what he got.
SEN. JEFF SESSIONS: No. And several others still have a chance to getting an up or down vote. It just remains to be seen. The agreement did not guarantee it. But Sen. Frist has been principled. He’s studied this for quite a lot of time. He marshaled the Republican members together, and I think he had 51 votes. And it was at that point when compromises were offered that senators said, okay, I’ll support the compromise and not the rules change.
GWEN IFILL: Are you disappointed that that happened?
SEN. JEFF SESSIONS: Well, I think things will work out. We’ll just see. I do applaud the majority leader for getting us there. And I was prepared to support him.
GWEN IFILL: Sen. Schumer what’s right with this deal and what’s wrong with it?
SEN. CHARLES SCHUMER: Well, far and away, the number one thing that’s right with it is nuclear option is off the table. As has been said before, it would have been devastating for the Senate, it would have been devastating for America as we know it because it would mean that checks and balances aren’t the hallmark of our government which it always has been. It would have meant you could just snap your fingers and change the rules at will in the middle of the game. That’s off the table. And I want to compliment Ben Nelson and his group — Ben was really a leader on this. I don’t quite agree with Jeff Sessions’ analysis. I talked to Ben repeatedly over the weekend. We didn’t know where the votes were. I don’t think anyone did. And I don’t believe Sen. Frist did but the moderate group on both sides of the aisle came together. So taking the nuclear option off the table is far and away a real victory not just for those who put the agreement together but for the entire Senate because that would have brought us to Armageddon. The worst thing about it is these three judges who I believe and I think most Americans, had they seen their record would believe, don’t really belong on the courts are going to get on. But as Jeff mentioned and others mentioned that’s compromise and that’s the Senate. And to get rid of the nuclear option and move forward, it was probably worth the game.
GWEN IFILL: Sen. Schumer, you spent a lot of time on the floor of the Senate and in news conferences all over town last week talking about how unacceptable these three judges are. How is it acceptable to vote for them?
SEN. CHARLES SCHUMER: Well, I’m not going to vote for them but we will have some people who will vote for them. Yes, I think they are unacceptable. You know, somebody who says the New Deal was a socialist revolution and there should be no zoning laws because it’s a taking of property so you could put a pornographic place next to a high school and you couldn’t do anything about it to me doesn’t belong on the DC Court of Appeals, the second most important court in the land. But I’m one of a hundred in the Senate. And overall as bad as having, say, that person on the bench is, it would have been worse to have the nuclear option, which would have really just brought the Senate to a grinding halt and been a dagger really right at the heart of what this republic is all about.
GWEN IFILL: Sen. Sessions, there are two key things in this agreement: One that says that Democrats can still filibuster judicial nominees in extraordinary circumstances and another one in which it seems to imply that the majority leader will not be able to effect this rules change to allow what Sen. Schumer is calling the nuclear option. Do you think those things are going to hold?
SEN. JEFF SESSIONS: Well, no. The way I understand it from the Republican senators who signed the agreement that their view is that if the filibusters start back for improper, not extraordinary reasons, they will vote for the constitutional option and the majority leader said it’s absolutely not off the table. It is on the table. And we’ll monitor this agreement. If there is a backtracking and we have routine filibustering of good quality nominees, I think that option will be back on the table. And I would just like to say to Sen. Schumer I do believe he mischaracterized the record of the judicial nominee that he mentioned there. And I think at some point we need to talk about that on the floor and we will. And the American people need to listen carefully because a lot of the charges against these nominees as being extreme are really unfair characterizations of their record.
GWEN IFILL: And, Sen. Schumer, the same question I addressed to Sen. Sessions, which we just heard Sen. Frist on the floor today say, he would still go back to trying to seek this rules change. Do you think that this is going to hold?
SEN. CHARLES SCHUMER: Yeah, I do. And the agreement is pretty clear. It says that the nuclear option is off the table. Sen. Frist may be for it. But the agreement that the 14 signed said the nuclear option is off. It does say that filibustering will be only in extraordinary circumstances. But let me read you the next clause which people have forgotten. “And each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.” So that will be up to the conscience of each individual member, but the nuclear option, I think is gone. Sen. Reid has said it. Everyone else has said it. And that was the whole thing that brought the agreement together. And, again, I want to pat Ben Nelson on the back. He doesn’t have the same views on judges as I do, but he knew how important it was to get the nuclear option off the table.
GWEN IFILL: Let’s go back to Sen. Nelson because as one of the signatories on this agreement I’m curious about what you think would happen if there were a severely disputed Supreme Court nominee. Would your agreement — the one that we forged out over all these secret meetings and not-so-secret meetings of the last week or so, will it be able to hold?
SEN. BEN NELSON: Well, I think so. I think if we get a nominee that is very controversial, it starts to raise questions about extraordinary circumstances, and you end up with five members of the Democratic side who feel that they have to filibuster; before that all happens you’ll have a lot of consultation with members on the other side to make sure that there is agreement, that there’s an understanding of why each individual senator would find this particular nominee to be extraordinary — that, I think is — or the circumstances behind and around that nominee extraordinary. So I think it’s self-enforcing in a very positive way. This is built on trust. We do trust one another. And I think there can be, as I think Sen. Sessions said, a spilling out of… or a spilling over of the… of this trust and this comity and the ability to work together can help us in some other areas as well. But if we can’t get the Senate back to mutual trust, we have other problems that may be in some respects greater than this one.
GWEN IFILL: Sen. Chafee, are you as optimistic as your cohort there?
SEN. LINCOLN CHAFEE: Well, I think a key part of the agreement is to stress the advice part of the Constitution that said advice and consent. And the president has always gotten the consent of the Senate. We’re urging him now to exercise the advice part of it. I think if he does that, then we can get a nominee or nominees to these courts, a nominee to the Supreme Court that could get 90 votes. I mean that’s the ideal. Justice Scalia got over 90 votes. Both of President Clinton’s nominees I believe Ginsberg and Breyer got over 90 votes so that’s the goal.
SEN. CHARLES SCHUMER: Yes. I think, Gwen, that’s a really important point that has not been stressed but is vital to this agreement. And that is that the president should consult. President Clinton regularly consulted with Republicans. In fact it was Sen. Hatch, the Republican leader of the Judiciary Committee, who suggested Justice Breyer’s name. President Bush has not consulted with us on the major court of appeals nominees at all. And if he would start consulting with this group of 14, with the Republican leader which he may consult with now, I don’t know, but with the Democratic leadership, we could avoid these kinds of situations. So the advice part of this agreement is really crucial, and I hope the president will begin consulting. He hasn’t done it up to now.
GWEN IFILL: Let me give Sen. Sessions an opportunity to respond to that.
SEN. JEFF SESSIONS: Well, President Bush does consult on judicial appointments but when you have a circuit maybe with fifteen judges and sixteen or eighteen senators, they may not consult with every single one on each appointment.
SEN. CHARLES SCHUMER: I don’t think he consults with any Democrats.
GWEN IFILL: Sen. Schumer.
SEN. CHARLES SCHUMER: I don’t think he consults with a single Democrat on the Judiciary Committee on -
SEN. JEFF SESSIONS: He consults with the senators in their states on nominees of judges in their states. He does that regularly. And President Clinton was not so good about that either. But presidents are doing a better job and I think he should consult and I believe he does. I believe that this agreement clearly is such that if a… the members who signed the agreement say, say the Republicans, believe that a new filibuster is undertaken that’s not in good faith they have said they will vote to support the constitutional option. It is not off the table.
GWEN IFILL: And that will have to be the last word. Thank you all very much, senators.