Neas has played a part in the efforts to defeat pretty much every controversial conservative judicial candidate since Bork, including Charles Pickering and Miguel Estrada during the first Bush term. He believes that if Frist does decide to push the button, it will be after a Democratic filibuster of one (or more) of the president’s appellate nominees, and not in conjunction with replacing Rehnquist. “With a Supreme Court nominee, the whole world is watching,” he contends. “They want to do this when as few people as possible are paying attention.”
To win, Neas and the Democrats will need to persuade six Republicans to break ranks. Four moderates, including John McCain, have already publicly declared their opposition; two others, including Chuck Hagel, are perched awkwardly on the fence. And three conservatives have refused to cough up an opinion. Meanwhile, at least one Democrat, Ben Nelson, has voiced dismay over his own party’s use of filibusters against judicial nominees. “It’s too close to call,” Neas admits, “but we’ve just started our lobbying.” Last week alone, he and his people met with fourteen Republican senators in their state offices.
Frist, by contrast, has told the Washington Times he already has the votes. But finding someone who believes him in the capital is like locating WMDs in Baghdad. “If we had 51, we’d have done it yesterday,” concedes a conservative judicial activist. “But we’re getting closer.”
Though Frist would never admit as much—he’d say it’s all about principle—the case he’s making to Republicans is that the nuclear option is a win-win proposition. If they prevail, obviously, it’s a judicial jackpot. But even if they lose, the politics of tagging the Democrats as obstructionists works decidedly in their favor. It’s now an article of faith on the right (albeit one with scant evidence behind it) that Tom Daschle’s defeat in November was due primarily to the filibuster strategy he masterminded. As Cornyn put it at CPAC, “Daschle assumed there was no price to pay, but the people of South Dakota got the message, and they threw him out.”
Were Frist to line up the votes, it would be a powerful show of strength on the part of the Christian right. And a victory here would also allow Frist to bank invaluable political capital for his putative presidential run in 2008. “He’s a moderate in many ways,” notes a Democratic consultant. “But if he delivers this, he’s a hero forever to the right.”
“If Republicans win on the nuclear option, they could get John Ashcroft confirmed as chief justice.”
Similar thoughts are surely racing through the heads of every Senate Republican who thinks himself a potential inheritor of the keys to the White House from Bush. (That is, most of them.) Self-regard? Hubris? Arrogance? That’s the Senate for you. Yet the largest obstacle to Frist’s plan is another aspect of the culture of the place: the belief that the Senate’s traditions are sacred, that it should be an institution where unbridled majoritarianism doesn’t always carry the day. Or, as McCain puts it, “The Senate should not be like the House.”
Even for those of us who’ve wondered if anything would be lost to democracy if the Senate were burned to the ground, McCain is onto something. And for many other “institutional conservatives,” his argument is the essence of reason. “When senators get up in the morning and look in the mirror,” says a longtime Senate aide, “the first thing they say—after ‘I should be president’—is ‘Thank Christ I’m not in the House.’ ”
In the end, I suspect such views are likely to prove both stubborn and influential. As the prospect of actually dropping the bomb becomes more real, there are signs of Republican nervousness the plan might backfire. In an interview last week, Arlen Specter was speaking, I reckon, for many of his colleagues when he said, “If we go to the nuclear option . . . the Senate will be in turmoil and the Judiciary Committee will be hell.”
Whatever the final fate of the nuclear option, however, the debate over the measure has already illuminated two points.
First: A party that seriously considers, let alone achieves, the demolition of a 200-year-old Senate tradition for essentially political ends cannot properly be called conservative. As Newt Gingrich always honestly advertised, the GOP is now a radical party, in the strictest sense of the term. But being radical, as Gingrich learned to his regret, demands a degree of ideological purity that makes governing damn hard. It also has a tendency to lead to overreaching.
Second: The fact that enacting the nuclear option has not (yet) been a slam dunk for Republicans, despite the implicit backing of the White House, is one of a number of signs that the vaunted party cohesion that characterized Bush’s first term may be on the wane. On Social Security, the budget, and even taxes, there have been more Republican yowls of discontent and disagreement in the first two months of Bush’s second term than anyone could have predicted. And most of them are emanating directly from the halls of the upper chamber.
I’ll say it again: That’s the Senate for you. Pompous, windy, prone to pettifoggery—and maybe, just maybe, more of a pain in Bush’s ass than either he or Rove bargained for. Here’s hoping.