Have the Democrats already lost the filibuster fight?
11:00 PM, Mar 3, 2005 • By HUGH HEWITT
WHEN DEMOCRATIC SENATOR ROBERT BYRD rose on the floor Tuesday to compare the tactics of his Republican colleagues in the battles over judicial nominees to those employed by Hitler in building the Reich, you knew two things.
First, that the Democrats would never abandon their extra-Constitutional position that nominees to the federal courts could be required to receive 60 as opposed to 51 votes for confirmation.
Second, that the Democrats had already lost the battle. When the captains are named Leahy, Kennedy, Schumer, Boxer, and Byrd, the outcome is not in doubt.
If you missed the Byrd outburst, you can read it here. Radioblogger did a survey of the mainstream media on Wednesday morning and found little coverage of the meltdown, though by Wednesday afternoon some cable news shows began to address Byrd's astonishing comparison.
Senator Byrd is anticipating that, faced with continued obstructionism, Majority Leader Frist will force through a rules change that provides for up-or-down votes on any judicial nominee that emerges from the Judiciary Committee. The GOP base, the thinking goes, will demand nothing less, and any Republican senator who refuses to support the change will be finished as a significant force in 2008 presidential politics.
But Byrd's outrageous objection is doubly offensive because during his stint as majority leader, Byrd himself pushed through rules changes that benefited his party. Here is Byrd, from the Congressional Record, January 15, 1979 (courtesy of the blog Beltway):
"This Congress is not obliged to be bound by the dead hand of the past . . . The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time . . . So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate . . . It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote."
IF THE GOP sets up the confrontation with care, it could set the Democrats back another ten years. The American public knows that a simple majority is the essence of fairness, and that the number "40" does not appear anywhere in the Constitution. They also know that Democrats have raised the bar highest for nominees with orthodox religious views; their campaign against Catholic judge William Pryor is especially offensive. Imagine the handicap newly announced Democratic Senate candidate Bob Casey--the pro-life Treasurer of Pennsylvania--will face in his race against incumbent Senator Rick Santorum given his party's bigotry towards devout Catholics like Pryor. Is Casey serious about making the argument that the rights of the unborn will be better off with another Democratic vote added to the caucus of obstruction? And if Casey promises to be open-minded about judges, will the GOP hesitate to point to newly elected Democratic Senator Ken Salazar of Colorado--who took less than two months to reverse his campaign position that all judicial nominees should get an up-or-down vote?