Kevin McCullough, April 6, 2005

Senator Majority Leader Bill Frist is getting a lot of free advice these days. And when it comes to the filibustering of judicial nominees by obstructionist democrats the voices have been surprising.

In the Thursday edition of the USA Today, a constitutional law professor that I have had immense respect for in the past, disappointed me greatly when he offered his advice to the Senate GOP leader.

Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington Law School, first gained my respect when he spoke out clearly and unambigiously regarding the issues of the rule of law during the Clinton impeachment. Turley's no non-sense kind of personality on television I though also resonated well with reasonable positions on various matters since.

However, Turley tendered this knuckle-rapping piece addressing Frist on Thursday.

Senate Majority Leader Bill Frist, R-Tenn., may soon try to change one of the longest congressional traditions in the nation's history -- the 200-year-old right to filibuster. However, unlike the original movie, Mr. Smith Goes to Washington, this modern sequel has the makings of neither good viewing nor good politics.

And he closed it like this.

Though the nuclear option may secure a Bush legacy on the court, it may also guarantee that it will be his only lasting legacy. Democrats recently promised to wage a virtual war if their right of filibuster is taken away -- slowing the Senate to a crawl through quorum calls and other tactics. For moderate Republicans, the loss of the rule would also eliminate the last excuse in resisting more extreme nominees. That would likely force some moderates to break with the pro-life base while also risking a backlash against the GOP among women if Roe v. Wade is endangered. Indeed, at least seven Republican senators are quietly resisting Frist's effort to "go nuclear.

Finally, the filibuster is the last of a series of rules that protected minority interests in the Senate. Once gone, the Senate would likely become less deliberative, less collegial and ultimately less influential. Of course, it was Mr. Smith who insisted in his filibuster, "Either I'm dead right or I'm crazy." In his modern sequel, Mr. Frist is about to show that you can be both.

It is disappointing to see Professor Turley take this tone, when he knows full well that he has misrepresented the case dramatically.

Senator Frist does not seek to remove the option for democrats to filibuster. The "nuclear option" has only been discussed in relationship to how it is applied to judicial nominees. To my knowledge there is no debate about extending it beyond, even in to legislative issues.

Turley also misrepresents the facts when he says that Frist seeks to overturn "200 year-old" tradition. Frist and the Republican majority seek no such thing - even though many Senate Democrats claim it is so. Never before in the history of the Senate had procedural filibusters ever been applied to judicial nominations. More damning in this case - Turley knows it - as a professor of constitutional law.

Equally surprising for Frist's consideration this week, were the words of former Senate Majority Leader George Mitchell, himself a long time Democrat said this about the use of filibusters in 1994 in an interview with CNN's Bob Franken.

I think that the previous restraint that senators had exercised with respect to the rules had vanished, and as a result, the rules (filibusters) are being abused in a way that obstructs and prevents action. That wasn't intended by the men who started this country and wrote the Constitution. I think we should limit and restrict the opportunities for its (filibusters) use so that we keep the good and prevent the abuse.

A Democrat arguing for a carefully defined and limited use of the filibuster?

As in...what it was designed for originally?

To be used for legislative matters only?

Senator Frist is getting a ton of free advice regarding the issue of filibusters and the hi-jacking of the rightful advice and consent that the Senate is to exercise on the matter of judicial nominees.

I would prefer he make it merely a matter of principle and return the Senate to the filibusters proper and constitutional use.

Why don't you let his office know how you feel...202.224.3121!

Kevin McCullough is heard daily in New York City, Connecticut, Rhode Island, New Jersey, Pennsylvania, and Delaware on AM 570 WMCA and AM 970 WWDJ from 1-4pm.

Copyright © 2005 Kevin McCullough