Other Columns by Paul M. Weyrich
Paul M. Weyrich Bio

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I had not worked for the U.S. Senate for more than a week when my mentor Senator Gordon L. Allott (R-CO) said something which absolutely startled me. I recall it as if it were yesterday. He said, "Just remember, in politics perception is reality." I knew deep down that no one ever had explained it quite that way. So it was then. So it is now. Senate Majority Leader Bill Frist (R-TN) has proposed a "compromise" in the never-ending battle over judicial nominees whom the president has nominated and who are waiting for an up-or-down vote in the Senate.

This battle has gone on since the 108th Congress, when Senator Frist had only 51 Republican Senators and Senate Minority Leader Tom Daschle (D-SD) devised a strategy to require 60 votes for any Circuit Court or Supreme Court nominee. The Circuit Courts of Appeal are very important because over 95 percent of all cases involving a constitutional issue end up there. The Supreme Court takes only about 80 cases, many implicating no constitutional issue.

During President Bush's first term there was no Supreme Court vacancy. Bush, however, did recommend better nominees for the Courts of Appeal than did his father or the revered Ronald Reagan. Excellent people. So at variance from 215 years of procedure, Senator Frist found himself with a filibuster aimed at these excellent Bush nominees.

Thus began the cry to limit the filibuster of judicial nominees. Frist began talking about a rule change which would restore the traditional Senate rules followed before the Senate of the 108th Congress invoked the filibuster for Circuit Court nominees. Frist simply did not have the votes then to do anything about the situation.

Then came the 2004 election. Republicans picked up four seats, including South Dakota which meant that Minority Leader Tom Daschle became the first leader of either party to be defeated since 1952. Surely, Frist and many outside groups thought that given this change the Democrats would stop using the filibuster for higher court nominees. We all thought wrong. The 109th Congress had not been sworn in when the new Senate Minority Leader, Harry Reid (D-NV), pronounced that his Democrats would filibuster the same nominees they filibustered in the 108th Congress if indeed President Bush re-submitted their nominations. It appears Senator Reid has the 41 votes needed to do so. He has 45 votes including that of retiring Vermont Independent James P. Jeffords, who votes with the Democrats.

So again there was talk of what Democrats and the media now have dubbed the "nuclear option." Reid added, knowing how weak Republicans are about confrontation, that if Senator Frist and the Republicans exercise the "nuclear option" (what Senator Frist calls the "constitutional option") the Democrats will shut down the Senate and prevent it from conducting all further business for the duration of the 109th Congress. That was intended to cause wobbly Republicans to run screaming into the Senate cloakroom. It did not. If anything it had the opposite effect.

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