The Freshmen vs. the Varsity

By KAREN TUMULTY, Massimo Calabresi

The U.S. Senate is a chamber split in two--two parties, two ideologies and, at times last week, two different centuries. There was majority leader Bill Frist accusing the Democrats of trying "to kill, to defeat, to assassinate" President Bush's judicial nominees, and Senator Rick Santorum of Pennsylvania comparing the Democrats' audacity to Hitler's--a charge so harsh he later had to apologize. To show what he thought of Frist, New Jersey's Frank Lautenberg carted in a poster of actor Ian McDiarmid playing the diabolical Supreme Chancellor Palpatine of Star Wars: Episode III--Revenge of the Sith. "In a far-off universe, in this film, this leader of the Senate breaks rules to give himself and his supporters more power," Lautenberg said. Then he quoted another character from the movie saying, "This is how liberty dies."

One floor below, off an ornate corridor adorned with 19th century frescoes, two Senators who rarely vote the same way on anything were doing things the old-fashioned way: putting their silver heads--and their combined 72 years of Senate experience--together in an effort to pull their less seasoned colleagues back from the brink. Virginia Republican John Warner and West Virginia Democrat Robert Byrd had each brought a copy of the Constitution and were poring over Alexander Hamilton's "Federalist No. 66" to see if they could discern precisely what the Founding Fathers meant when they gave the Senate the power to advise the President on whom he appoints. The talks had begun the day before, when the two ran into each other by chance in the Russell Senate Office Building and Byrd all but begged Warner: "We've got to see what we can do."

What both men were trying to avoid was a vote, engineered by Frist and set for this week, that would change Senate procedures to make it impossible for Democrats to continue blocking Bush's judicial appointments by talking them to death. The Democrats have been winning by filibuster--which requires 60 votes to overcome--what they cannot accomplish on a simple up-or-down vote, since Republicans have 55 Senate seats to their 44. Neutralizing the filibuster may sound like little more than a bit of parliamentary housekeeping, but, given the tactic's long tradition in the Senate, Mississippi Senator Trent Lott christened the move the "nuclear option." Frist ignited the fuse last week, bringing up the long-stalled nomination of Texas Supreme Court Justice Priscilla Owen to the U.S. Court of Appeals, 5th Circuit. Ostensibly, the fight is over a handful of long-blocked appellate court nominations, but both sides acknowledge that it is really about how the Senate will approach any upcoming vacancies on the Supreme Court, the first of which may open within weeks since ailing Chief Justice William Rehnquist is expected to step down. The outcome could also help determine, maybe for a generation or more, what limits will exist on the power of a President whose party also controls the Congress.

At stake is the essence of the Senate: Should the institution maintain the unique culture that the framers of the Constitution envisioned for it, a place where a minority can have its say and even have a shot at winning a battle here and there? "The whole idea of the Senate is that it's different from the House. The passions of the moment can cool here," says North Dakota Democrat Kent Conrad, one of the Senators who was trying to come up with a deal to avert the vote on the nuclear option. If Republicans can manage to end the filibuster of judicial nominees, Democrats warn, it is only a matter of time before they end the filibuster on other issues as well.

Warner, who has the aquiline look and formal bearing that sometimes seem right out of Henry Clay's era, has made no secret of his discomfort over the fact that he would even have to cast a vote on the filibuster. "I've been here 27 years," he said. "I have the greatest respect for this institution and how it's served this country all these years." Democratic leader Harry Reid said he had heard private misgivings about the wisdom of changing Senate tradition even from Republicans who publicly pledged to support Frist on the vote.

That a showdown was not more easily avoided reflects a generational shift under way in the Senate, and the fact that the once insular institution has become more reflective of the polarized political landscape around it. Moderates, of either party, are few. Traditionalists like Warner have increasingly been supplanted by a younger generation of Republican Senators, most of whom have arrived there by way of the more autocratic House, where on most questions it doesn't make any difference to the outcome whether the Democrats even show up to vote. In the 2004 election, six of the seven Republican freshmen came from the House.

Moreover, many of the newer Senators have never known what it is like to be in the minority. They have little patience for arcane traditions that can allow the objections of even a single Senator to bring the place to a halt. "The institution is important, but the future of the country is what we're here for," said South Carolina freshman Jim DeMint at a Capitol Hill news conference to express support for Bush's judicial nominees. Georgia Republican Johnny Isakson recalled that when he was elected to the Senate last year, his House colleagues joked that he would have to get a lobotomy to fit in. "Every Senator has immense power, but it's all negative power," said Isakson. "You can stop anything, but you can't do anything."

The younger Senators contend that if anybody is trashing the traditions of the institution, it is the Democrats, who are abusing a weapon that earlier generations reserved for only the gravest matters. In the entire 19th century, the filibuster was used only 22 times; now Democrats regularly filibuster dozens of times a year. And until the Democrats started filibustering judges two years ago, the measure was almost never used to defeat a President's judicial nominee. Since then, they have used the filibuster to block 10 of Bush's picks--seven of whom he has renominated, in part to provoke this week's showdown. Democrats say what they are doing is no worse than the Republicans' preferred tactic when Bill Clinton was President: making sure controversial nominations never got past the Judiciary Committee, which was controlled by the Republicans.

For all the idealized Mr. Smith Goes to Washington imagery that the filibuster invokes, its uses have often been much darker. It was, for instance, one of the major means by which white segregationists blocked civil rights legislation in the 1960s. Republicans note that Democrats had a different view of delaying tactics when they were running the Senate. Democrat Tom Harkin of Iowa has lately been one of the most outspoken defenders of the minority's right to filibuster, but in early 1995, he argued, "There is no reform more important to this country and to this body than slaying the dinosaur called the filibuster."

Even if the Republicans prevail, it remains to be seen whether there is any prize to be had. The issue inflames the activists on each side, from evangelical ministers on the right to a group calling itself the Hip Hop Coalition on the left. But it does not rank in the concerns of most people, and it comes at a time when Americans are already holding Congress in low regard. An NBC/Wall Street Journal poll last week showed public approval of Congress at 33%, which is the lowest since 1994, the year voters got angry enough to topple the Democratic majority of the Senate and the House.

If voters don't like what they are seeing now, they aren't going to be any happier with what happens next if the nuclear option passes. Filibustering is not the only tool the minority has to slow business to a crawl. The Senate last week got a taste of how harsh nuclear winter might be when Democrats invoked an obscure procedural rule to cancel all committee meetings, where the bulk of Senate business gets done. They have also threatened to require full Senate votes for even the most mundane business, a move that could put the brakes on the G.O.P. agenda. Democrats warn they will turn to another little-used rule to circumvent committees entirely, so that their own priorities can move directly to the Senate agenda. That way, if the Republicans want to move to legislation blocking asbestos-related lawsuits, for instance, they might first have to vote to shelve a Democratic health-care bill. "We will feel we do not owe the majority any deference," says New York Democrat Charles Schumer.

Judging from the tone of what passed for debate last week, deference on both sides has already disappeared. For that matter, so has civility. Some Senators will vote to end the judicial filibuster partly in a desperate effort to change the tone. "You know what?" said New Mexico Republican Pete Domenici. "I don't think it could get any worse."