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Majority leader 'reserved the right' to review Senate rule

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Filibuster Rule Change Still Possible, Says Former Frist Aide

Majority leader ‘reserved the right’ to review Senate rule

Majority Leader Bill Frist (R.-Tenn.) may have balked at changing the Senate’s filibuster rule at the start of the 109th Congress, but a former aide to the GOP leader said Frist’s statement Tuesday offers hope in the battle over President Bush’s judicial nominees.

Manuel Miranda, Frist’s former counsel, told HUMAN EVENTS that Frist did everything he needed to do Tuesday to leave open the option for a rule change later this year should Democrats decide to block an up-or-down vote on Bush’s nominees.

“What Frist did [Tuesday] was a historic moment in the Senate,” said Miranda, who organized the fight for judicial nominees during the 108th Congress. “It was one of the boldest things he could have done. He took an enormous step that few majority leaders have done before.”

As Frist’s former liaison for judicial nominees, Miranda was privy to discussions dating back to 2003 when Democrats first launched a filibuster against federal appeals court nominee Miguel Estrada, and eventually nine other Bush nominees. Miranda left his job in February 2004 after reading memos on the Democrats’ filibuster strategy that were left unprotected on an accessible computer server.

The debate over Bush’s judicial nominees has again emerged as a top priority for Frist in the new Congress. Bush renominated 20 candidates for federal judgeships on Dec. 23, all of whom Democrats managed to block or prevent Republicans from confirming in Bush’s first term.

But with Republicans still falling short of the 60 votes needed to break a filibuster–the GOP expanded its majority to 55 from 51 in the last Congress–Frist pleaded with Democrats to cooperate and work in a bipartisan spirit not to hold up the nominees.

The majority leader said Tuesday he wouldn’t advance a rule change on the filibuster this week–an option advocated by former Judiciary Chairman Orrin Hatch in HUMAN EVENTS last month. But, more importantly, in Miranda’s view, Frist also didn’t rule out that possibility at a later date.

The difference between Hatch’s and Frist’s ideas rests on the interpretation of Frist’s comments Tuesday on the Senate floor. Frist said, “I reserve the right to propose changes to Senate Rule XXII and do not acquiesce to carrying over all the rules from the last Congress.”

Writing for HUMAN EVENTS, Hatch said it would require 67 votes to change Rule XXII during the Senate’s session as opposed to a simple majority of 51 votes at the start, before the rules are officially adopted. But Miranda said when Frist “reserved the right” to make changes, he would still be able to abide by the 51-vote standard.

The issue becomes muddied because Frist is essentially trying to do something that has never been done before. The Senate has never grappled with changing Rule XXII on filibusters as it pertains to judicial confirmations, because before 2003, a minority of senators had never tried to run afoul to the Constitution’s advice and consent clause.

As Hatch wrote in HUMAN EVENTS, there is a precedent for changing the rules at the start of a new Congress, which would have to take place sometime this week before the Senate adjourns. Hatch noted that former Vice President Richard Nixon, serving as the presiding officer, twice ruled that the Senate didn’t have to abide by the rules established by an earlier body. Former Vice President Hubert Humphrey later affirmed Nixon’s ruling.

Miranda said Frist’s staff must be confident that the rule change could take place later this year with a simple majority vote, otherwise Frist wouldn’t have made the reference in Tuesday’s speech. The first test might be only a month away when Frist promised to bring up one of Bush’s nominees for a vote on the Senate floor.

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Written By

Mr. Bluey, a contributing editor to Human Events, is director of the Center for Media & Public Policy at The Heritage Foundation. He maintains a blog at RobertBluey.com.

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