IT'S THE $64,000 QUESTION on Capitol Hill these days: Do Republican senators have the 50 votes needed to end judicial filibusters? Senate majority whip Mitch McConnell thinks so. "I never announce my whip count," he said Sunday on the CBS program Face the Nation. "But I'm telling you there's no doubt in my mind . . . that we have the votes we need." Leading GOP senators privately concur. No matter that several Republicans are still hedging. When push comes to shove, the votes will be there.
If you're Senate majority leader Bill Frist, that's the optimistic way to look at things. But given the recent John Bolton confirmation bungle, Republicans will make extra sure all their ducks are in a row before moving on judges.
The tactic being debated is, of course, known as the "nuclear" or "constitutional" option. It might work like this: Republicans would request a ruling from the Senate chair allowing them to obtain cloture on judicial nominations by majority vote. When that ruling came down, they'd have to muster a majority to uphold it and thus establish a new Senate precedent. (The actual text of Rule XXII--the filibuster rule--would not be changed.) Because Vice President Cheney can break any ties, Frist needs 50 supporters for the plan to go forward.
By my count, there are at least 10 Senate Republicans--out of 55 total--who either oppose the strategy or have yet to take a public position. They include liberals, mavericks, and moderate conservatives.
John McCain (Arizona): McCain is one of only two GOP senators who have publicly said they will buck their party's anti-filibuster maneuver. "I will vote against the nuclear option," he told MSNBC host Chris Matthews earlier this month.
Lincoln Chafee (Rhode Island): Chafee is the other sure-fire Republican defector. "He feels that it would be a mistake to change the Senate rules," explains spokesman Stephen Hourahan. At least one conservative lobbyist says Chafee might still be "gettable" for Frist. But Hourahan affirms his boss's staunch opposition.
Olympia Snowe (Maine): Most GOP sources expect Snowe to eventually vote against the anti-filibuster plan. For now, she remains publicly undecided but leaning heavily toward opposition. "I don't think it's going to be any surprise about what I intend to do on this vote," she told the New York Times last week. Says a Snowe aide: "I think it's clear where she is."
Susan Collins (Maine): Collins is more of a wild card than Snowe, but also skeptical of Frist's plan. In her chief statement on the judicial crisis, Collins said Democrats have used the filibuster "unfairly" against many of President Bush's circuit court nominees. At the same time, she felt the so-called nuclear option would be a "mistake" and urged Frist "not to proceed with a rule change that will further poison the partisan atmosphere in the Senate to the point that we will not be able to conduct business."
John Warner (Virginia): Warner is a reliable conservative on most issues. But he's also been in the Senate since 1979 and knows what it's like to serve in the minority. He routinely cites that experience when relating his hesitance to scrap judicial filibusters. "I just look at this institution as really the last bastion of protecting the rights of the minority," Warner told the New York Times last week, "and we should be very careful before we try and make any changes."
Lisa Murkowski (Alaska): "She is still currently in the 'undecided' column," says a Murkowski spokeswoman. "Her concern is the timing of the constitutional option." That is, Murkowski worries the anti-filibuster method could derail next year's budget resolution, which contains a provision to allow oil drilling in Alaska's Arctic National Wildlife Refuge (a provision Murkowski supports).
John Sununu (New Hampshire): Sununu's office says he "has not taken a public position" and will not take one until the moment he casts his vote. But GOP sources indicate that Sununu will likely come on board with Frist.
Mike DeWine (Ohio): Like Sununu, DeWine claims to have made up his mind privately but won't divulge his choice. "I don't even know," says a DeWine aide. As with Sununu, Republicans predict DeWine will ultimately back the anti-filibuster maneuver.
Chuck Hagel (Nebraska): Hagel is perhaps the Senate's second most famous GOP maverick, after John McCain. On April 17, he told CNN's Wolf Blitzer he had "not made a decision. If I have to make one, I will. But I've said to both sides, don't include me in your count right now." He did, however, emphasize his concern for preserving "minority rights" in the Senate. Chipping away at the filibuster, Hagel said, was both "dangerous" and "irresponsible."
Arlen Specter (Pennsylvania): True to form, Specter has tended to deploy on-the-one-hand-on-the-other-hand appraisals of the filibuster spat. Thus, in a floor statement last week, he first zinged the Democrats' "unprecedented use of the filibuster," but then said doing away with judicial filibusters would mark "a serious blow to the rights of the minority." Nevertheless, pro-nuclear Republicans trust Specter will side with them if and when the time comes for a vote.
As the filibuster battle drags on, the list of GOP holdouts might well shrink. It certainly has over the past two months. "Everybody's breaking towards us," says one pro-nuclear Republican Senate aide.
Does that mean Frist has reached the magic number? The answer should come before Memorial Day.
Duncan Currie is a reporter at The Weekly Standard.