TOPICS > Politics

No Comity Tonight

November 12, 2003 at 12:00 AM EDT


GWEN IFILL: The Senate’s last all-nighter happened a decade ago, over taxes, not judges. But the battles over judgeships seem more partisan than most with neither side giving ground. But are these standoffs political or practical? And do they make it more difficult for the Senate to get anything done at all?

Here to offer an assessment of these questions are two men who have been in the middle of it all: Former Democratic Sen. George Mitchell, who served as majority leader from 1989 to 1995, and former Republican Sen. Fred Thompson, who served in Congress from 1994 to 2002.

Senator Mitchell, is this strategic, tactical, necessary? Is it useful?

FORMER SEN. GEORGE MITCHELL: I think what’s happening tonight and tomorrow is a staged event intended to accommodate concerns of those who feel that the Senate Republican leadership hasn’t done enough on behalf of their nominees, indeed Republican senators have said just that — that they want us to do more, or trying to show we can do more. I don’t think it will have the effect of any kind, except to reinforce those views held on both sides.

I have several suggestions on how to ease the controversy, but I must say, frankly, Gwen, it’s very hard to take seriously an event like this, given the history of this controversy.

First, it was Republicans who initiated the process of filibustering judicial nominees, since the current Senate rules were adopted the first such filibuster was by Republicans. And until this Congress, both parties had used it, Republicans slightly more than Democrats. Secondly, the Republicans were very aggressive in the use of the filibuster. I know from personal memory, kind of painful memory when I was Senate majority leader, in the last two years of my leadership, Republicans in one Congress filibustered 34 times, judicial nominations, a whole bunch of other bills. Contrast that with the entire 19th century, a period of 100 years, when there were only 16 filibusters in the Senate.

So it’s become very active on both sides, with Republicans being more aggressive about it. In light of that history, and in light of the fact that President Bush has sent up 172 judicial nominations and 168 of them have been approved, a 98 percent approval rate, it’s very hard to take this seriously, although I do think it reflects the continuing increase in partisanship in the Senate, which is I think the core problem that ought to be addressed, not just judicial nominees but the full range, and I’ve got a couple of suggestions on that I’ll be glad to get into later.

GWEN IFILL: Senator Thompson, first I want to ask you whether this should be taken seriously. Senator Mitchell obviously does not think so.

FORMER SEN. FRED THOMPSON: Yeah, I think so. A little walk through history is always interesting and you can use statistics in a lot of different ways.

The fact of the matter is when the Democrats had control of the Senate, the rate of approval of President Bush’s appointees was slower than anyone since President Carter. And now, while both parties have kind of slowed up nominees, for example, when presidents were about to end their terms and so forth, they pointed their fingers at each other. This is an unprecedented ad seriatim denial of court of appeals justices, an opportunity to get a vote. Keep in mind here what we’re asking for is an opportunity to vote up-or-down.

The Democrats have changed the standard from whether or not a nominee is competent, whether or not they have integrity, which is the traditional standard, to one as to whether or not they can pass a certain litmus test that is very important to small groups that are very important to the Democratic Party right now. And that’s what’s happening. They claim that these nominees are radical and so forth, people who like Justice Brown out in California, who received a 76 percent approval rating of the people of California, Justice Priscilla Owens of Texas, who received a well qualified rating from the ABA — the only judge who has ever received unanimous qualified rating from the ABA to be denied by the Senate Judiciary Committee. So these are extraordinary circumstances. What’s more important here than what’s going on tonight or tomorrow night or who shot John 20 years ago, is what’s happening to the Judiciary.

I’m afraid we’re doing lasting damage to the only institution just about we’ve got left in this country where people have pretty much universal high regard for. That’s what’s going to be the upshot of this if we continue down this road.

GWEN IFILL: Senator Mitchell, I’m wondering about whether this is about what’s happening to the judiciary, or whether people watching this all night on C-span are going to think, what’s happening to the Senate?

FORMER SEN. GEORGE MITCHELL: Well, of course all-night sessions haven’t occurred in recent years, but they were a regular feature of the past Senate, perhaps before television. So it will be new to a lot of people.

Let me just say in response to Fred’s comment, Republicans filibustered four appeals court nominees and two Supreme Court nominees. So where was the outrage then? Now, of course he says that’s history, because now the Republicans have employed the filibuster very skillfully and very frequently when they were in the minority. Now they’re in the majority, all of a sudden they say, well, let’s not do what we did, let’s do it a different way now that we’re in the majority.

I think the real issue is the decline of comity in the Senate, the increase of partisanship, and the loss of institutional loyalty on both sides. And I think the way to deal with this is to try to restore that — overall not just on judicial nominations. Secondly on judicial nominations, I believe the president should be working with senators on both sides on appeals court nominees, to try to come up with good nominees who can get broad approval as occurred in California and Wisconsin, and can occur in other places. If you take the position that 168 out of 172 is not good enough, that 98 percent approval is not good enough, then what’s the point of having a Senate advise and consent process, if anything less than 100 percent approval of a president’s request is deemed obstruction. I don’t agree with that argument.

GWEN IFILL: Senator Thompson, let’s try to move past the judgeships — I’ll let you to respond to that, but I’m also curious about the other issues that Senator Mitchell raised which is the lack of comity in the Senate. I wonder whether you agree with that and what ought to be done.

FORMER SEN. FRED THOMPSON: Well, what ought to be done is for there to be more comity in the Senate. I mean, someone says you can’t keep dogs from chasing cars, and perhaps that’s true, but we can do an awful lot better than what we’re doing now. But this — what’s going on now just exacerbates the problem.

What is unique here, I mean, their position apparently is that this is just kind of a standard routine process. It is not. Presidents traditionally have had the prerogative of making these decisions and then you vote up or down. What is underlying all this, is the fact that each of these four nominees, and it will be six shortly, who are being denied an up-and-down vote would be passed with a majority vote in the Senate if they were allowed to have a vote. I served on the Judiciary Committee, I never participated in a filibuster. I helped along many of President Clinton’s nominations.

The real issue was whether or not to vote for the nominee or against the nominee. And I voted for them in most cases. But never was there an issue of whether or not you should block the process. So that is unique, that is different, that is what is exacerbating the situation right now.

GWEN IFILL: Senator Mitchell, — excuse me, I’m sorry, Senator Thompson.

FORMER SEN. FRED THOMPSON: I just wanted to say, in times passed, of course, different people have done different things. Justice Fortis, I think, there was a filibuster, I think, about questions of integrity. This is the first time there’s been a series, one right after another, a federal court of appeals nominees who have been denied for philosophical reasons — no questions about integrity, no questions about competence but because they don’t fit a certain litmus test. That is unique; that is dangerous. That will wind up coming out with nominee those have never held a job, never made a speech, never written an opinion, nerve served as judge, total ciphers that will not serve the judiciary well. But that’s the direction we’re going in unless we change our process.

GWEN IFILL: Senator Mitchell, let’s talk about some of the rhetoric which has been used so far in this debate. We heard Senator Daschle, who is now minority leader, the leader of your party in the Senate, earlier in the week accuse the Republican leadership of the Senate as being amateurs, which the strike back was that was a new low in Senatorial courtesy. Is that kind of language helpful in trying to get people to work across party lines?

FORMER SEN. GEORGE MITCHELL: Well, I’m not in the position of commenting on everything every senator says. Heck, if you go down the list of 100 of them and trot out all the speeches of the past couple weeks, you’ll find a lot of things that I disagree with, Fred may disagree with, you may disagree with, but I don’t like to get into the position of commenting on each individual senator’s comments.

I think there has to be a restoration of comity in the Senate, an institutional loyalty, and a self-restraint that says that senators will not exploit the rules to the fullest to achieve their objective if it produces a situation like the current one. But I don’t disagree with the sentiments Fred expressed; the problem that the Democrats have is that the Republicans didn’t act that way when the positions were reversed. And they having first employed the filibuster, they, against judicial nominees, they having employed it more often and more aggressively, now when the situations are reversed say, wow, this is terrible, we’ve got to do something about this.

I think it’s very difficult to take seriously. I think what you need is to deal with the core issue and not just with respect to judicial nominations.

GWEN IFILL: Senator Thompson, is the public served by this kind of debate ultimately?

FORMER SEN. FRED THOMPSON: Oh, I don’t know. It’s difficult, the Democrats have decided that there’s no price to pay for this politically. Or else it would have been tried before. No one had the temerity really on either side to do this before, that’s why we’ve never had this situation come up before in the history of our country, in terms of this kind of impasse over judicial nominations. We’ve played games with each other before, but there’s never been anything like this in the history of our country.

GWEN IFILL: Why do you think it’s different now?

FORMER SEN. GEORGE MITCHELL: I just want to say, I don’t agree with that. There have been these instances in the recent past when Republicans filibustered Democratic-nominated judges.

FORMER SEN. FRED THOMPSON: There has never been an articulated ad seriatim vote down, a refusal to have an up-or-down vote, on a court of appeals justices, four or now six, one right after another for reasons of so-called political philosophy or reasons having to do with other than incompetence or integrity. But again there’s no use to have a schoolyard debate about this.

What’s happening here is something that’s happening to the judiciary and something that’s happening to Congress. With the numbers as close as they are, and the Senate and in the House, every issue becomes important political issue. No one can seem to give any quarter to either side any more. Everyone is looking for a small advantage to exploit for the next election, it’s always an election year or the year before the election. That’s what’s happening in terms of comity.

We have these people coming in, lobbyists every day and people coming in from back home, putting the pressure on for these various interest groups, demanding that anyone who does anything having to do with hot button issues be castigated and voted down if they’re judicial nominees, oh, that’s what’s happening. Members just have to get over that, and not let politics be the driving force in all of this.

GWEN IFILL: And we’re going to have to leave it on that note. Thank you both, senators.