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Majority Leader Bill Frist Threatens to Change Senate Filibuster Rules

April 25, 2005 at 12:00 AM EDT
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GWEN IFILL: Senate leaders, both Republican and Democrat, are counting votes and devising strategy for this latest culture clash over judicial nominations. Here to lay that out are two members of the Judiciary Committee. Sen. Jon Kyl of Arizona is the chairman of the Republican Policy Committee, and Democratic Sen. Richard Durbin of Illinois is the assistant minority leader. Welcome, gentlemen.

Sen. Durbin, it seems that what is normally an arcane dispute over Senate rules has suddenly turned the corner into kind of a cultural war. How did that happen?

SEN. DICK DURBIN: It’s an interesting thing because when this first got started I thought the American people won’t even understand the debate: The use of terms like filibuster and the rules of the Senate. Who pays any attention? But it’s amazing that it’s caught on. And I think that’s why it’s moved into this new phase in opposition. People across the country understand what it means to change the rules in the middle of the game, which is what the nuclear option would do. It would eliminate the filibuster on judicial nominees, a tradition of the Senate that’s been here for over 200 years.

It also is going to assault a very fundamental principle of checks and balances, which gives to the Senate the last word when it comes to advice and consent of judicial nominees and presidential appointments. But I think the thing that really comes home is the fact that the president has successfully brought through Congress — a Congress, the Senate I should say of Democrats and Republicans — over 95 percent of his nominees. He’s been extremely successful, but he wants them all. He wants more power. It’s not just the power to govern. It’s the power to rule.

GWEN IFILL: Sen. Kyl, Sen. Durbin just said that this is a big turn and all of a sudden this was changing the rules in the middle of the game. What’s your sense of that?

SEN. JOHN KYL: Well, exactly the opposite. For 214 years it has been the tradition of the Senate to approve judicial nominees by a majority vote. Many of our judges and, for example, Clarence Thomas, people might recall, was approved by either fifty-one or fifty-two votes as I recall. It has never been the rule that a candidate for judgeship that had majority support was denied the ability to be confirmed once before the Senate. It has never happened before. So we’re not changing the rules in the middle of the game. We’re restoring the 214-year tradition of the Senate because in the last two years Democrats have begun to use this filibuster.

And that goes to the statistics that my friend Dick Durbin just cited. If you take all of the district court judges and put them into the mix, President Bush has had about the same number approved as any other president, but if you focus on the judges directly below the Supreme Court, the circuit judges, a third of them roughly have been filibustered or under threat of filibuster — 16 out of 51 — which resulted in President Bush having the lowest confirmation rate of circuit court judges of any president in modern history.

GWEN IFILL: Sen. Kyl, excuse me, we’ve heard this argument a lot about judgeships. And I wonder how this one, however, became a religious debate. That event we saw last night was a church. There were people speaking in almost apocalyptic terms about the end of democracy as we know it. Do you see this as a cultural issue?

SEN. JOHN KYL: No. It’s not a religious debate at all. I know that some of the media have portrayed it as such. I think that both Democrats and Republicans are talking to all kinds of folks, but I know because Sen. Durbin and I have both discussed this in the Judiciary Committee that neither of us believe that there should be any religious litmus test. This isn’t about religion at all.

This is strictly about whether or not a minority of senators is going to prevent the president from being able to name and get confirmed judges that he chooses after he’s been elected by the American people. And it’s never been the case until the last two years that a minority could dictate to the majority what they could do.

GWEN IFILL: Then what was last night about?

SEN. JOHN KYL: Last night was the majority leader speaking to a group of people just like senators speak to group of constituents all over the country. And certainly if there’s not going to be a religious test, then I wouldn’t think you’d be suggesting that senators shouldn’t be able talk to religious people as well as non-religious people.

GWEN IFILL: How about that, Sen. Durbin, what is your take on that?

SEN. DICK DURBIN: I respect Jon Kyl. We work together on a lot of issues, but I have to disagree. Unfortunately, Sen. Frist’s appearance last night at this Kentucky rally by videotape just added fuel to the flame that this is somehow a religious debate. It is a constitutional debate. And that Constitution prohibits us from even asking a nominee whether they have a religious persuasion. There is no religious test in America.

So now because they can’t win the constitutional argument or the traditions of the Senate, many of the critics, those who support the nuclear option and critics of the current rules are saying it’s all about this nominee’s religion. That is not the fact in any way whatsoever. Trust me, out of the 205 judges, which President Bush has had successfully approved by the Senate, there are many with political views different from my own and not a single one that I could tell you of their religion, what their religious persuasion might be.

It is a sad time when the majority leader of the Senate adds his voice to this divisive rally which occurred in Kentucky. We have so many things that divide us as Americans we don’t need to allow religion to become part of this debate.

GWEN IFILL: But Sen. Durbin, at what point do Democrats begin to overreach the debate like this by threatening basically to shut down the Senate?

SEN. DICK DURBIN: We’re not going to shut down the Senate. We’re not going to shut down the government. I can tell you we learned our lesson watching Newt Gingrich. That hapless tactic was terrible. It’s not going to happen again. But I will tell you this. If they decide on the Republican side to break the rules in order to change the rules, then sadly we have no choice but to enforce the rules and live by them.

It will be a different Senate. Senators will be at their desks more, on the floor more, in session more. The key legislation for the defense of America and our troops and important appropriations bills will still pass, but the agenda of the Senate and the procedure of the Senate will change.

GWEN IFILL: Sen. Kyl before we move on to what the procedure is going to be on the floor in the next couple of weeks, I’m curious about one more question about last night. James Dobson, who’s the head of a group called Focus on the Family, one of the organizers of last night’s event along with the Family Research Council criticized the Supreme Court directly. He described them as arrogant, imperial and out of control. Do you agree with that?

SEN. JOHN KYL: Well, as a member of the bar, it’s not my inclination to criticize justices by name or even decisions that they’ve rendered except on the merits. I don’t agree with all the decisions of the Supreme Court. But it is wrong to believe that because people of faith happen to disagree with pronouncements of the Supreme Court and choose to call some of those decisions arrogant to therefore suggest that they don’t have a part to play in the national debate.

Again, let’s not get focused on that issue. It has nothing to do with the rules of the Senate and changing 214 years of tradition here in the United States Senate. That’s following a tangent that’s really not relevant to the debate that we’re going to be focused on here.

GWEN IFILL: Well, let’s talk about what Sen. Durbin just outlined in which the Democrats would allow debate only on the issues which they cared about and they would basically close off debate on anything else. What do you think about that approach?

SEN. JOHN KYL: Well, I don’t think it’s productive obviously. And it kind of reminds me of the schoolyard bully. When the umpire makes a call against him, he picks up his ball and goes away. I don’t think the American people will really appreciate that.

We’ve got important business, not just national security business but the bill we’re on right now to fund the troops, war effort and get a budget this week, the highway bill that’s before us this week; those are important things that I think a lot of people would like to get done. But what my colleague is talking about is using among other things the legislative filibuster. That’s not going to go away. Senators want their right to filibuster. And they’ll have it.

But what would occur as a result of the question that will be asked to the presiding officer in this debate is basically, is it the tradition of the Senate to have an up or down vote to give these nominees an up or down vote with the majority vote prevailing or is the last two years the real precedent of the Senate to require 60 votes? And I think that the presiding officer will say no the tradition of the Senate has been that a majority vote prevails.

GWEN IFILL: Does Sen. Frist have the votes in order to force this nuclear option?

SEN. JOHN KYL: Well, I’m not going to characterize it as a nuclear option. That’s what the opponent….

GWEN IFILL: Or a constitutional option. Whatever term we’re using today.

SEN. JOHN KYL: It is a constitutional option because the Senate has the right to provide its own precedents. That’s what would be done. I won’t predict vote, but I don’t think we’d go forward unless we thought we had the votes.

GWEN IFILL: How about that. Sen. Durbin, what’s your nose count these days?

SEN. DICK DURBIN: Well, I can tell you it’s very close; it’s down to one or two Republican senators. And they understand the basics. First, this term nuclear option was coined by Trent Lott, a Republican. It’s not a Democratic way to try to color this debate.

But secondly we’ve had 11 different filibusters on judicial nominees and Sen. Frist himself voted to filibuster one of President Clinton’s nominees, Richard Piaz appointed to the Ninth Circuit. You can find it in the Congressional Record. He voted that way. So it’s happened despite what you hear to the controversy. They are changing the rules and traditions of the Senate.

And many Republicans like John McCain, my colleague, Jon Kyl’s colleague from Arizona, has said this is the wrong thing to do. They realize that changing the rules and assaulting this constitutional tradition may sound great today when you have the majority, but over the long haul it is not good for the Senate or good for our country.

GWEN IFILL: Sen. Kyl, certainly.

SEN. JOHN KYL: Just quickly respond to one point here: There has never been a successful filibuster of a nominee that had majority support in the history of the United States Senate. The incident that was mentioned by Sen. Durbin was a situation in which Trent Lott – the then majority leader – worked with Tom Daschle the then minority leader to be sure that two controversial choices of President Clinton got a vote up or down on the Senate floor.

And we voted to allow them to have a vote. Now I voted for one of the candidates and I voted against one of the candidates. That’s what we ought to allow here is an up or down vote. But we didn’t stop those candidates from being voted on. They’re sitting on the Ninth Circuit Court of Appeals right now.

GWEN IFILL: Sen. Kyl, Sen. Durbin just alluded to your seat mate from Arizona, Sen. McCain. In last night’s event they also targeted what they described as squishy Republicans not only Sen. McCain, but they named Sen. Lugar and Sen. Murkowski as people who everyone should call today and get on board. Is that sort of conversation going on within the Republican caucus as well?

SEN. JOHN KYL: Well, I think Democrats are talking to Republicans. Republicans are talking to each other. We do that all the time. And there’s nothing untoward about that. And I honestly don’t know how any Republican is going to vote as we sit here this evening.

GWEN IFILL: Sen. Durbin, do you think there should be in the end after this process has sorted itself out some sort of effort for legislative overview of judicial decisions?

SEN. DICK DURBIN: No, I think we ought to be very careful here. The suggestion from Mr. Perkins, this Family Research Council that they’re going to close down certain circuits of the federal judiciary is the kind of threat that they should take seriously. We have always valued an independent judiciary, and for any group, Democrat, Republican, religious or not religious to say that they are going to go after the Judiciary as Mr. DeLay has said in the House is just wrong.

It is something we shouldn’t encourage. I’ve been one who has disputed a lot of the decisions in the Judiciary over the years. I’m sure Sen. Kyl has too. But the idea of trying to remove the judge who makes the unpopular decision or to close down the circumstance, that just goes way too far. That is extreme.

GWEN IFILL: Sen. Kyl your response to the same question?

SEN. JOHN KYL: Well, I’ll tell you what is shutting down the judiciary is not filling vacancies. We have according to the commission on the courts several emergency judicial emergencies, situations in which we need to put judges in to vacant positions. They’re not — we’re not being able to act on them. It really is true that justice delayed is justice denied. So we need to give these judges an up or down vote. That’s all we’re asking for, and if some of my colleagues think that they’re too conservative or in some other way unqualified then vote against them.

GWEN IFILL: And should there be legislative oversight over individual judicial decisions?

SEN. JOHN KYL: I don’t think the Constitution allows us judicial oversight over individual decisions. Our authority under the Constitution is to define the jurisdiction of certain of the courts. That’s really the only thing I think that constitutionally we can do. Now, I mean obviously we could change federal laws that the court has made pronouncements on.

GWEN IFILL: Sen. Kyl, Sen. Durbin, thank you both very much.

SEN. JOHN KYL: Thank you.

SEN. DICK DURBIN: Thank you.