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April 1, 2005



PAUL GIGOT: Next week, with the return of Congress from Easter Recess, we may well see the first round in what promises to be a bitter fight over Senate confirmation of President Bush's nominations of federal judges. Senate Democrats are able to block the nominations, even though they are in the minority, by threatening to filibuster. Now Senate Republicans are considering whether to use the so-called "nuclear option." That is, whether to change the rules of the Senate to eliminate the filibuster on judicial nominations, requiring only 51 votes to shut off debate rather than 60. There are 55 Republican senators. Democrats say that if the Republicans change the rules to prevent filibusters on judges, they will bring the Senate to a virtual halt by using other rules.

There is also a debate about this within conservative ranks. The liberal group, the People for the American Way Foundation, weighed in this week with this commercial:

MAN: Hi. I'm a Republican. A common sense Republican. I like that my party controls the White House and the Congress. But I also know that our democracy works best when both parties are speaking out and being heard. The filibuster has been around 200 years, and God knows our party used it whenever we needed it. But we're a two-party system, and America works best when no one party has absolute power. It's just plain common sense.

PAUL GIGOT: Joining us to discuss all this is David Hoppe, who spent nearly 30 years on Capitol Hill, most recently as Chief of Staff to the former Senate majority leader, Trent Lott. David is now a Vice Chairman of Quinn Gillespie & Associates, a Washington consulting firm. David, it's great to have you with us.

DAVID HOPPE: Thank you very much.

PAUL GIGOT: The Democrats filibustered 10 judicial nominations in President Bush's first term. That's never happened before for appellate nominees, for the Court of Appeals. Why shouldn't Republicans change the rules to return to what has been traditional Senate practice?

DAVID HOPPE: Well, the system is broken. The question is, how do you try and fix the system. And I keep going back, as I consider this, to a line from the play A Man For All Seasons: "Richard, after you've cut down all the trees, where will you hide when the devil comes after you?" And that's the problem with the nuclear option, because it will not stop there. The next step when somebody needs it will be to get rid of the filibuster on legislative issues. Say a president seven, eight years in the future decides that their national health care program just has to be done, and they've got the might to make right of 51 senators. Should they get rid of the filibuster on legislative items? That's the way we're headed here if we do it this way.

There are other ways of handling the problem. I think what we ought to do is look at changing the standing rules of the Senate, so that nominees would get a vote. In fact, it is changing through the regular order of the Senate to get back to the way the Senate used to handle all nominations. And I think you ought to do it for all nominations, basically allow a nominee to be sent to committee, give the committee a certain time to have a hearing and have a vote, and no matter what the vote is in committee, send them to the floor and then allow everybody to have a vote on the floor. And that would be fair. It would be fair to the President, it would be fair to the Senate, it would be fair to the committees. This could be done by changing the standing rules of the Senate if a bipartisan group wanted to.

PAUL GIGOT: But is that really a realistic thing politically now? Because the Democrats seem so insistent upon using the filibuster to block. Certainly if the President re-sends up some of the people that they filibustered in the first term, can this happen?

DAVID HOPPE: If you talk to Democrats off the record and say, "Should this be something that both a Democratic president and a Republican president ought to have the right to have their nominees voted on?" They will tell you yes. What they don't want at this point, it seems to me, that George Bush will get some of his nominees voted on. If you're going to do this, somebody has to be first. Somebody has delayed gratification, in this case the Democrats. Somebody gets their gratification now. But you're going to have a time, if you do this with 67 votes -- which it needs to be done that way to do it in a bipartisan way in the Standing Rules -- the Democrats will get this power at some point. Because nobody's going to have 67 votes to switch it back and forth at a whim. Might does not make right. If you can't do it this way, it probably ought not to be done, as bad as this situation is and as broken as the Senate nominations process is.

PAUL GIGOT: One of the frustrations that I hear from Republicans is that we now had three elections where judges were a big issue -- certainly in the presidential elections of 2000 and 2004. But also, two Senate elections, that is in 2002 and 2004. In a lot of races, including Tom Daschle's in South Dakota, this was litigated. This was a major issue, and the Democrats lost on the issue. So shouldn't elections have some consequences here with Republicans being able to actually get nominees voted up or down?

DAVID HOPPE: Yes. But I think the way to have consequences with them is to take a proposal that would say to the people of the country, look, the Democrats say they want their president to be able to have votes because they complain about what the Republicans did under Senator Lott -- he was the leader -- to the judges, the nominees that President Clinton sent up. And now they're doing something that is a step further to the nominees that President Bush has sent up. If they really mean that, then they ought to want to change the Standing Rules of the Senate in the regular order. And that would be a better thing to campaign on, and to make clear to the country, it seems to me, than might makes right with 51 people, which could undermine the institution of the Senate.

PAUL GIGOT: Bret, protection for minority rights -- do you agree?

BRET STEPHENS: No, I don't. And I'll tell you why. The suggestion is that somehow if Republicans, who are now in the majority, respect Democratic minority rights, the Democrats are going to return the favor. I don't believe that. And there's historical evidence to that fact. The Democrats were a majority in the Senate in the 1970s when Robert Byrd was then the majority leader, and he changed the rules in order to make filibusters more difficult. He changed it from a 67 vote rule to a 60 vote rule. So the rules have changed in the past. They can change again. But ultimately what matters here is that there's been outrageous Democratic obstruction for reasonable Republican requests to bring these nominations to a floor vote. And they're obstructing that. And that shouldn't be allowed to happen.

PAUL GIGOT: If you let the Democrats get away, David, with this I think mis-use of the filibuster from what it has historically been and this purpose, what's going to stop them for employing the "nuclear option" themselves when Republicans are in the minority, and try the same tactic?

DAVID HOPPE: Well, I can't say that they won't, and the history is correct. Did Robert Byrd try and do some of these things in the seventies? Yes, he did. But it doesn't make it right to have done that. And for the Republicans to say there's a breakdown in nominations, in the procedure and how it's working, and we want to solve it from both sides for a long period of time under the standing rules of the Senate through regular order, is the right way to do this. And that, I think, would have some effect later on if somebody tries to come back and change it, for example, for the filibuster on legislative items.

Historically, we have protected minority rights with the filibuster by the far right and the far left actually getting together. If you look at the history of those, you found the far right Republicans would join with far left Democrats, or far left Republicans, like Lowell Weicker, for example, to keep the filibuster as strong as they could and to keep minority rights, because they understood that the Senate was the one place in our government where you could do that.

PAUL GIGOT: Lowell Weicker, the former Republican senator, liberal senator from Connecticut. Dan, there's another political component here, is there not? And that is the frustration on the part of a lot of Republican voters, if they don't see the Republicans fighting to get those judges confirmed.

DAN HENNINGER: Oh, they say it all the time. But what you're actually requiring the Republicans to do, I think, Dave, is to win an election in which you put 60 Republican senators in the Senate to break these filibusters. And this at a time when the country, as we saw in 2000 and 2004, is deeply, philosophically divided on the direction of the country's politics. And the expectation that you could ever get it up to 60 senators, and otherwise you default to this impasse that we have, I think is unrealistic.

PAUL GIGOT: I don't think we've had 60 senators since the 1920s, have we?

DAN HENNINGER: Seventy-five years.

DAVID HOPPE: It's a long time. The only argument I would make is, there are a number of Democrats who very quietly will tell you that they think a president has the right to have his nominees voted on. They tend to be former Democratic governors who got to name judges in the state, and believe they ought to have that right. If you work this through the regular order, I think you can find that group. At this point they are very constrained by their Democratic brethren, who have not been governors, and don't want George Bush to be able to have these nominees voted out. But I don't think that the Republicans have to get 60. I think there are cooler heads out there who would be willing to say, let's make these changes because we would like this, if we get a Democratic president, and we know that the Republicans also would have the power to do it with a Republican president. I don't think it's impossible. It is a tall order, but it's not impossible.

PAUL GIGOT: David, very quickly, very briefly -- do we have any chance of avoiding this kind of a showdown? Are we going to see it in the Senate?

DAVID HOPPE: I think you'll see it. I also think you'll see some maneuvering before you get there. But I do think that this action will take place.

PAUL GIGOT: All right. Thank you all very much. Next subject.