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Parties Square Off Over Frist’s Plan for ‘Broken’ Confirmation Process

Members of the Senate Rules and Administration Committee split along party lines during Thursday’s contentious hearing on a proposal to eliminate filibusters of judicial nominations.

Majority Leader Bill Frist (R-Tenn.), sponsor of a resolution that would alter Senate rules to allow defeat of such filibusters with a simple majority if three cloture votes fail, called the current confirmation process “broken.”

“A problem has emerged and there is an announced threat that it will spread,” he said. “If we do not fix it now, filibustering nominations will become a new Senate tradition,” making 60 votes the new de facto requirement for judicial confirmation.

Sen. Robert Byrd (D-W.Va.), speaking both spontaneously and from prepared remarks, aimed his right index finger at Frist while saying the proposed change “points an arrow at the heart of the Constitutional liberties of the American people, and it points an arrow to my heart.”

In all, 11 members of the Rules Committee, five Republicans and six Democrats, spoke for almost two hours. Sens. Edward Kennedy (D-Mass.), Zell Miller (D-Ga.) — a co-sponsor of the rule change — and John Cornyn (R-Texas) also testified.

Every Democratic Senator present except Miller opposed the resolution, which was proposed in wake of Democrat filibustering of circuit court nominees Miguel Estrada and Priscilla Owen.

Sen. Charles Schumer (D-N.Y.) accused the Bush administration of throwing a “temper tantrum,” noting that around 98 percent of Republican nominees have been confirmed. “It’s like saying, ‘If we don’t win all the time, we’re going to pick up our marbles and go home.’”

All Republicans present supported the Frist resolution, with the exception of Sen. Gordon Smith (Ore.), who said he was undecided.

Republicans often characterized the current filibustering as unconstitutional. Rules Chairman Trent Lott (R-Miss.) said Democrats have “rewritten the Constitution to engraft a supermajority rule into the confirmation process.”

Sen. Saxby Chambliss (R-Ga.) said that “giving advice and consent says 51 votes are required.”

Changing Senate rules would require a two-thirds majority, 67 votes, a number Republicans are unlikely to muster. Democratic Senators at the hearing likened the rule change to executive branch bullying.

“Senators are lining up to sacrifice the independence of the Senate to the pleasure of the White House,” Byrd said.

And Minority Leader Tom Daschle (D-S.D.) said the changes would turn the Senate into a “rubber stamp.”

If the Frist proposal does not pass, Republicans have recourse to what Senators are calling the “nuclear” option: calling on Vice President Cheney, in his role as President of the Senate, to rule that filibustering of judicial nominations is unconstitutional. Such a ruling could pass with a simple majority.

Some Republicans, including Sens. John McCain (Ariz.) and Olympia Snowe (Maine), have expressed hesitation on using that tactic.

GOP Conference Chairman Rick Santorum (Pa.), however, told other Senators at the hearing that the “nuclear option would be a response” if Frist’s proposal fails.

Democrats, he said, started the fight by filibustering. “To suggest we are firing the first bomb here is misstating what’s actually occurring,” he said.

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