Mon, 05 Jan 2009 21:19:56 +0000 – By Lanny DavisAttorney/Former White House Special Counsel
Barack Obama's key philosophy and message in the campaign and during the transition has demonstrated just the new kind of politics that rises above partisanship that he promised in his campaign. If he wants to be successful in implementing those themes as president, he might be wise to reflect on the lessons to be learned from the "Gang of 14" compromise over judicial nominations.
He was not part of that compromise at the time back then as a junior freshman senator, elected less than a year before. I suspect the Barack Obama of today would have been.
The senators, quickly deemed the "Gang of 14," were, for the Democrats: Robert Byrd of West Virginia, Mary L. Landrieu of Louisiana, Joe Lieberman of Connecticut, Daniel K. Inouye of Hawaii, Ben Nelson of Nebraska, Mark Pryor of Arkansas and Ken Salazar of Colorado; and for the Republicans, Lincoln Chafee of Rhode Island, Susan Collins of Maine, Mike DeWine of Ohio, Lindsey Graham of South Carolina, John McCain of Arizona, Olympia J. Snowe of Maine and John W. Warner of Virginia.
Their "deal" resulted in breaking the filibuster by Senate Democrats, who had 44 senators and one independent (Sen. Bernard Sanders of Vermont) to block any Senate vote on an unacceptably conservative Bush judicial nominee. With seven Democrats joining 55 Republicans, there would be more than 60 votes to force an up-and-down vote.
But the seven Republicans also agreed to oppose Sen. Bill Frist's threatened use of the so-called "nuclear option" - to change Senate rules by a majority vote to require up-and-down votes. But that option would have produced unprecedented partisan warfare in the tradition-bound Senate, leading to even more stalemated government.
In stepped the "Gang of 14."
Some were liberals, some were moderates, some were conservatives. All thought that the hyperpartisan and double standards that led to this stalemate needed to end. Each was willing to offend the ideological purists in his or her respective party.
And what was the "deal?" They agreed in writing that all judicial nominees approved by the Judiciary Committee would receive an up-or-down vote unless there were "extraordinary circumstances." Each senator trusted the others to define that expression in good faith and as a matter of conscience.
Trust and good faith between members of both parties -- the glue that made the deal possible. Two terms not heard too often these days in Washington.
The compromise -- surprise! -- infuriated partisans on both the right and the left. And that's why it worked, and that's why it was the right thing to do.
This is relevant to the political scene facing the president-elect for several reasons. For one thing, it should help guarantee most, if not all, of Mr. Obama's judicial nominees an up-or-down vote on the Senate floor if they are approved by the now-Democrat-controlled Judiciary Committee.
The original gang of 14 is now down to 10 -- with three Republicans no longer in the Senate (Mr. Warner, Mr. DeWine and Mr. Chafee) and one Democrat, Mr. Salazar, having just resigned to become the president-elect's nominee for secretary of the interior. But the four remaining Republicans (Mr. McCain, Mr. Graham, Mrs. Snowe and Miss Collins) are enough to prevent a Republican filibuster.
Will there be some Republican senators and conservative talk-show hosts who flip-flop and suddenly insist that no Obama judicial nominee who is too liberal has a right to an "up or down" vote? Don't be shocked if that happens. But I trust that the now-"Gang of 10" will increase its numbers based on the same principle of trust and faith, and thus, most if not all of Mr. Obama's nominees will get a Senate vote.
More importantly, the new president can use this example as a model to create a broad center-left and center-right bipartisan governing coalition in both the Senate and the House. To do so he must do the unthinkable for a majority party controlling both chambers of Congress and the presidency: He must consult with Republicans and conservative leaders, not just the Democratic congressional leadership, before he makes his legislative proposals, not after. He must broaden the bipartisan coalition in both chambers of Congress so that solutions are developed and legislation is passed not by 51-49 margins, but by 60-40 or greater margins.
Therefore, he must be open to compromise, open to getting less than 100 percent and, most important, be ready to take the heat from ideological purists from both sides. He will likely take a lot of heat from some Senate and House Democratic leaders who might prefer to exclude Republicans from the early bargaining tables, just as Democrats were excluded when the Republicans controlled Congress.
But Mr. Obama already has shown a willingness to break the "gotcha" cycle of partisanship and repeated cycles of do-to-them-what-they-did-to-us. He has done so repeatedly during the eight weeks since his election, in a transition that has to be regarded as one of the most effective and seamless in modern U.S. history.
The new president can make this happen because, in the final analysis, he will say no to the old ways of hyperpartisanship - and "yes, we can" to developing compromises reflecting the views of the broad center between the 20-yard lines of this country, where most Americans live, and get into the solutions business, which most Americans want.
I wish him luck and fortitude. He will need both. Based on what I have seen to date, he will have both.
Lanny Davis, a Washington lawyer and former special counsel to President Clinton, served as a member of the Privacy and Civil Liberties Oversight Board from 2006 to 2007. He is the author of "Scandal: How 'Gotcha' Politics Is Destroying America." This article also appeared in The Washington Times on Monday, January 5, 2009.