Conservatives Without Conscience (23 page)

Mansfield’s proposal changed all this. The Senate, by long tradition a highly collegial body, does most all of its business, of necessity, by unanimous consent. Under Mansfield’s “two-track” system, the Senate agreed, by unanimous consent, to spend its mornings on the matter being filibustered, and afternoons on other business. Professors Catherine Fisk and Erwin Chemerinsky pointed out in a study that this system worked for everyone. On the one hand, the two-track system strengthened the ability of the majority to withstand a filibuster by enabling it to conduct other business. On the other hand, it made it easier for the minority, which no longer had to hold the floor continuously to prevent something less than a supermajority from cutting it off. In time, the mere prospect of a filibuster became enough to block consideration of a given matter. Based on successive changes of
the Senate rules, the supermajority needed for a cloture vote was reduced to a vote by sixty senators. Thus, when a senator informs the leadership of plans to filibuster—and the leadership knows that he or she has the support of at least sixty senators and, therefore, the ability to invoke cloture and override the threatened filibuster—the matter will not even go to the floor for a vote. The modern filibuster has therefore become silent, since its mere threat results in stopping a debate in its tracks.

Because the filibuster is a negative procedure, and one that frustrates the will of a simple majority, those trying to force something through the Senate with something like a “one-vote victory” will often complain about how the minority is tying up the Senate. While such opposition has given it a bad reputation, the minority party must be able to rely on it to prevent the tyranny of a bare majority. In its present form it is, in essence, a minority veto. To overcome it requires a supermajority—a supermajority the Republicans do not currently command. Accordingly, authoritarian conservatives in the Republican ranks of the Senate, many of whom once served in the House, where a simple majority always prevails, want to change the rules. But because they do not have the two-thirds support necessary for doing so, Republicans are prepared to rely on a parliamentary gimmick that would drastically change the nature of the Senate, by eliminating the Senate’s unlimited debate for judicial nominees, which could then be extended across-the-board. It is so radical, and with such potentially devastating consequences for this traditionally highly cooperative and collegial body, that it is viewed as certain to create the equivalent of a “nuclear winter,” and for that reason it is called the “nuclear option.”

The possible use of the nuclear option first arose when the Democrats lost control of the Senate following the 2002 election, and President Bush started sending it increasingly hard-right nominees for federal judgeships. Democrats decided that their best option was to do what Republicans had done when Democrats controlled both Con
gress and the White House. During the 1968 presidential campaign, President Lyndon Johnson nominated two liberal justices for Supreme Court seats, proposing to move Abe Fortas from associate justice to chief justice and then to place Homer Thornberry in Fortas’s seat. Senate Republicans filibustered the Fortas nomination, which gave the next president, Richard Nixon, the opportunity to appoint a new chief justice. But when Democrats adopted that strategy and started filibustering Bush’s lower-court nominees to prevent him from packing the federal judiciary with right-wing judges and justices, conservatives became furious. Republicans refused to treat this as fair play, even though during the Clinton presidency, Senate Republicans had blocked votes on judicial nominations by simply refusing to process them, which meant some sixty Clinton nominees never even had a hearing before the Senate Judiciary Committee. But when Democrats sought to block Bush’s nominees, Republicans refused to treat this as fair play.

Here is how the nuclear option would work, as explained by
The Hill,
the newspaper that covers Congress. Rather than seek a vote to change the rules of the Senate, which they would lose since they do not have a two-thirds majority, Republicans would seek a ruling from the presiding officer of the Senate—most likely Vice President Dick Cheney, who is the president of the Senate—that Rule XXII, the cloture vote rule, does not apply to so-called executive matters such as judicial nominations submitted to the Senate by the president, but only to legislative business. Republican senators would likely argue that filibustering the president’s business, which consists of matters on the “executive calendar” such as nominations and treaties, would be a violation of the separation of powers. Needless to say, such a procedural ruling would be contrary to long practice, but Cheney would almost certainly give the GOP members exactly what they want, and Democrats would have little recourse. It takes only a simple majority to override a ruling of the presiding officer, but the Democrats do not have one. Nor could the Democrats follow the Killer D’s example in
Texas by simply walking out, for the fifty-one Senate Republicans could run the Senate in their absence with more than enough senators for a quorum.

To date, the nuclear option has not been exercised, although Senate majority leader William Frist was ready to pull the trigger before a group of seven moderate Republican senators joined with seven Democrats to prevent the authoritarian conservatives from imploding the Senate.
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The Gang of Fourteen (sometimes called the “Mod Squad” because they are all moderates) reached an agreement, which they executed in writing, that eliminated the use of the nuclear option—at least temporarily.
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The gist of their understanding was that the seven Democrats would not vote with their party on filibustering judicial nominations except in “extraordinary circumstances,” and the Republicans in turn agreed not to vote with their party and the Republican leadership for the exercise of the nuclear option. (By subtracting seven votes from either side, the moderates, in essence, took control.) It was basically a good-faith effort, since only a few details were worked out, including that the Democrats would prevent further filibustering of three of Bush’s nominees. It was a perfect example of the way the Senate should work, using the give-and-take of compromise. The Gang of Fourteen has continued to meet, but their agreement is binding only for the 109th Congress, which will end in January 2007. Authoritarian conservatives in the Senate will likely try the nuclear option again if Republicans control the Senate in 2007, should Democrats try to use the filibuster on judicial nominees. Needless to say, there is nothing conservative about destroying Senate precedent and tradition, but
then, authoritarians are not troubled with conscience, even if they call themselves conservatives.

The Authoritarianism of the Senate Leader
Who Wants to Be President

It was Senate majority leader William Frist who led the Senate to the brink of nuclear catastrophe. Frist had been a well-known heart transplant surgeon at Vanderbilt University’s hospital in Nashville, Tennessee, before he was elected to the Senate in 1994. Before becoming majority leader he had made almost no serious news whatsoever since arriving in Washington, although he was occasionally featured in human interest stories. He provided emergency care for the man who shot a Capitol Police guard, and, in turn, was shot by the guard; and after the anthrax attacks in the Senate, his explanation of how the deadly poison worked was enlightening.

A December 31, 2001, profile in
Newsweek
described him as “brainy and intense, confident to the point of arrogance,” “a daredevil by nature,” “ambitious, eager to be noticed, [but not] a team player at heart—and White House strategists know it.” His seemingly iconoclastic independence was appealing, and many welcomed his selection by his Senate peers to replace Senator Trent Lott (R-MS) as majority leader. After being told by an insider that if Vice President Dick Cheney’s health took a serious turn for the worse, Bill Frist was at the top of Bush’s list to replace him, I decided to read the hagiography by Charles Martin,
Healing America: The Life of Senate Majority Leader William H. Frist, M.D.,
which revealed that Frist has been slated to be president of the United States since he was only a few days old.

It is a novel story. It seems that when Bill Frist was busy campaigning for the Senate in 1994, his associate, Dr. Karl VanDevender, was responsible for running the Frist Clinic, which recently had admitted a longtime Frist family employee, the trusted yardman, housekeep, and handyman, whom they affectionately called “Mr. John.”
On election night Karl VanDevender was monitoring Mr. John, who was fading fast of kidney failure. At one point in the evening, as VanDevender kept an eye on the television and reported the returns, Mr. John whispered his last words. “Dr. Karl,” he said, “since the day this happened, more than forty-four years ago, I’ve only told two people—my pastor and my wife.” VanDevender brought a chair to Mr. John’s bedside and leaned in close to get every word of Mr. John’s astonishing story.

Soon after Bill Frist’s mother brought him home from the hospital, she appeared on the front porch carrying a baby basket with Bill sound asleep in it. He was only a few days old. Bill’s mother said she wanted to go down the street to her sister’s house, and she asked Mr. John to wait with baby Bill until she returned. “I’ll be back in five minutes,” she promised, and off she went. “So I sat down on the porch next to the boy,” Mr. John continued, “and no sooner had she left than a bright light came down from heaven. An angel wrapped his golden wings around the baby and said, ‘John, don’t worry about this baby. He’s going to be fine.’” Mr. John caught his breath and finished reporting the angel’s words. “‘One day, he’s going to be president of the United States.’” With this, Mr. John took another deep breath, and added, “That Senate race? That ain’t nothing. He’s got that in the bag.” Mr. John died that night, shortly after learning Bill Frist had defeated an eighteen-year incumbent, Democratic senator Jim Sasser.
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With his laserlike mind, Frist makes Bush and Cheney look like filament bulbs near burnout, and their authoritarianism was troubling enough. Frist is Richard Nixon with Bill Clinton’s brains, and Nixon was no mental slouch. Frist is without question a social dominator, and dominators, obviously, cannot hide their tendency to dominate. No one describes Bill Frist’s dominating personality better than Frist himself in his first book,
Transplant: A Heart Surgeon’s Account of the Life-and-Death Dramas of the New Medicine.
The memoir opens with Frist at the top of his game as a cardiac surgeon, and it is clear that in the operating room, he is the man in charge. He called himself a good
quarterback, a position he played at a private high school. It is immediately clear that Bill Frist has always been a driven individual—a born dominator and seeker of power. As the “youngest of five children,” he wrote, he could “hardly help but be a demanding little tyrant.” Frist says of his kindergarten years, “I ruled not just over my family but over my friends—or should I say subjects—who always opted to come to my house.”
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In the lower grades, “I longed to be first in everything, to be king of the hill, the grammar school
capo di capi.
I imagine I was quite insufferable. I hated—and often too quickly abandoned—anything at which I did not excel. I sought out whatever made me feel useful, different, and in control. I felt most comfortable with slightly younger boys who could look up to me, admire me…. I resented anyone my age who was more popular, bigger, faster, or smarter. I was jealous of them. I feared them. They might take over.” In high school, he acknowledged he “became a deadly serious overachiever,” with his “raging hormones of adolescence” spawning “an urge to excel and a desire to lead.” He was class president for three of four years, yearbook editor, quarterback of the football team, and voted most likely to succeed during his senior year.
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Frist was in a serious motorcycle accident during his high school years. While he said this brush with death punctured some of his “sense of self-importance,” the accident also somewhat strangely resulted in “a romantic patina to an aloofness that had been growing in me since earliest childhood.” He was building what he calls a “Great Wall” between himself and his peers, “emotional brick by emotional brick.” His Great Wall runs throughout his narrative, and he explained that only later did he “come to believe that every man who wants to lead builds such a wall, though few of them talk about it.” Frist reported that by the time he headed to Princeton for his undergraduate studies, his “wall was almost complete. Few of my early acquaintances dared or cared to scale it, and I languished behind it without many close friends.”
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As is often the case with authoritarians, politics caught Frist’s at
tention during his college years; he would graduate from Princeton in 1974. He spent the summer of 1972 in Washington as an intern in the office of Democratic congressman Joe Evins, the senior member of the Tennessee delegation. Evins advised Frist that if he planned to go into politics he should start with a career outside of the political world. Frist even cast his romantic life in terms of dominance. “Imagining myself a leader,” and a Ulysses no less, he wrote that when heading off to Harvard Medical School, “I possibly wanted a Penelope back home waiting for me.” He found her, proposed, and dumped her just days before the wedding.

At medical school Frist had his Great Wall fully erected and was determined to outdo himself: “I realized that instead of molding doctors, medical school was in the business of stripping human beings of everything but the raw, almost insane, ambition you must have to simply get through.” This, he confessed, is when an infamous incident occurred that Frist explained was the result of his temporarily losing sight of the big picture. What he described, however, is actually typical of a dominator playing the game his way and then justifying his own conduct. Frist had taken time off from his regular coursework to study cardiac physiology through laboratory work. He spent “days and nights on end in the lab, taking hearts out of cats, dissecting each heart,” and studying and recording the effects of various medicines on the hearts. With six weeks to go to complete his project, Frist ran out of cats. “Desperate, obsessed with my work, I visited the various animal shelters in the Boston suburbs, collecting cats, taking them home, treating them as pets for a few days, then carting them off to the lab to die in the interest of science…. It was, of course, a heinous and dishonest thing to do, and I was totally schizoid about the entire matter…. I was going a little crazy.”
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