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CARL LEUBSDORF Hypocrisy fills the air in nation's capital



Published: Thu, April 28, 2005 @ 12:00 a.m.



Along with the pollen, hypocrisy is filling the air these days as Washington girds for a potentially titanic Senate vote over whether rules should be relaxed to make it easier to confirm federal judges.

Liberals who once condemned Senate rules allowing unlimited debate now defend them. Conservatives who used Senate procedures to block President Clinton's judicial nominees now blast liberals for using the rules to stop some 10 of President Bush's picks.

West Virginia's venerable Sen. Robert Byrd, who began his career filibustering civil rights bills and later sought to curb some debate while a Senate leader, is defending the filibuster as a cornerstone of free speech.

Majority Leader Bill Frist is leading the fight to end unlimited debate on judicial choices. In 2000, he was one of 14 GOP senators to refuse to limit debate on a Clinton judicial nominee.

However both sides portray it, this battle is not primarily about principle. It's a bare-knuckle, partisan fight over political power.

Just as Senate rules protecting minorities once frustrated Democrats and liberals, now they balk Republicans and conservatives. Like Democrats and liberals tried to do, mostly unsuccessfully, they're trying to change the rules, since they now have the majority.

If they succeed in invoking the "nuclear option" with a parliamentary maneuver even the Republican-picked parliamentarian has questioned, a majority of the 100 senators could end debate and confirm judicial nominees. Now, 60 votes are needed, and there are only 55 Republican senators.

Presidential nominees

Republicans say they want to ensure votes on presidential nominees. Democrats say it could determine the kinds of judges Bush picks for Supreme Court vacancies that are expected, starting this summer.

What's really at stake is the Senate's historic role as a brake on the presidency.

"The necessity of their concurrence ... would be a check upon a spirit of favoritism in the president and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment or from a view to popularity," Alexander Hamilton wrote in "The Federalist" papers.

Neither the Constitution nor any other document gives senators the right of unlimited debate. But it became a Senate tradition early on, and only in the last century have efforts been made to curb it.

The way Southern senators used the rules to block civil rights proposals ultimately stirred enough popular outrage that Senate leaders could muster the required super-majorities to bring those measures to a vote.

Republicans claim that filibusters against judicial nominees are something new. Some constitutional historians dispute that. But the tactic was admittedly not used as much in the past -- though, in 1968, Republicans and conservative Democrats used it to kill President Lyndon Johnson's effort to make Abe Fortas chief justice.

But the more recent escalation of the practice simply reflects the escalation in battles over judicial nominations in the last 20 years.

During the Clinton years, Republicans rarely filibustered nominees because they didn't have to. They controlled the Senate after 1994, which meant they could and did kill several dozen judicial nominations in committee.

Democrats employed the same tactic when they gained control in 2001-02. When they lost it, they used the filibuster threat to block 10 Bush nominees they accuse of "radical" views. Republicans say it's a litmus test aimed at abortion foes.

Democratic compromise

Both sides claim the votes to prevail, but neither seems sure. In recent days, some Democrats have said they are open to a compromise, under which some of the judges would be approved and the proposed rules change dropped.

Though polls show the public opposes the change, Frist is under pressure from religious conservatives, whose support he'll need for a 2008 presidential bid, to ensure that more conservative judges can be approved.

It might help if Bush recognized why the Constitution's framers wrote that the president can only appoint judges "by and with the advice and consent of the Senate."

X Carl P. Leubsdorf is Washington bureau chief of the Dallas Morning News. Distributed by Knight Ridder/Tribune Information Services.




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