This week, the Senate returns from its Memorial Day recess still caught up in the internal turmoil that has slowed all other business to a crawl. On the surface, this conflict concerns judges and an ambassador awaiting confirmation. But beneath that, the Senate is struggling with an identity crisis of historic proportions.
This week, two more judges — Janice Rogers Brown and William H. Pryor Jr. — will be confirmed to the federal appeals bench. It is also possible the Senate will confirm John Bolton as ambassador to the United Nations. We will then see whether these three strong conservatives make the difference the president desired (and the Democrats feared). If they do, more people will understand why the Senate was so convulsed over confirming them.
But closing these three cases will not resolve the question of the Senate's role in the appointment-confirmation process — let alone the larger, underlying question of the Senate's status in contemporary government.
Is the Senate just another legislative body where the simple majority should prevail, or is the Senate different? Senators themselves have long fancied their workplace as a special environment where decisions are made more collectively. The Senate process involves not only the majority and minority, but the entire body and all its individuals.
The institution was in part patterned on the Roman Senate, a body that in its self-conception epitomized republican government by a wise council, a gathering of peers who ruled by debate and consensus.
Since its creation, the American Senate has held itself apart from — and somewhat above — the common run of elected officeholders. Its members serve six-year terms and represent whole states. For the first 120 years of the republic, senators were not even elected by ordinary voters but rather by the state legislatures.
Even after the Senate entered the 20th century, adopted popular election and began limiting debate by supermajority vote, its unique way of doing things survived. Each individual senator remained a force.
In his study of the chamber in the 1970s, The Senate Nobody Knows, Bernard Asbell marveled at how the Senate achieved compromise through what individual senators called accommodation. He closed his book with this observation about the group dynamic:
"Every Senator has power, just as every political group, every citizen, indeed, every family member within a family has power. The most common purpose of accommodation — in the Senate as in real life — is to cool someone else's passion for using it."
For a vivid depiction of this collective will, take a look at the 1962 film version of Allen Drury's novel Advise and Consent (a new digitized version became available on DVD this spring, just in time for the current crisis).
In this Otto Preminger film, a dying president tries to put his stamp on the future and a proud Senate resists. Liberals and conservatives contend, personal lives are shattered and plot twists abound. But the main character that shines through is this creature the Senate, with its culture of accommodation and its extraordinary sense of itself.
This is the sense of the Senate under stress in 2005. It is being challenged on multiple fronts by a presidential administration flush with its 2004 re-election success. The administration wants "up or down" votes on nominees and other important matters. "That's what the American people expect," President Bush said last week, "and that's what I expect."
What's on the line here is the Senate's culture and self-concept. The individual senator's power rests in his or her right to extended debate. This is the basis by which small groups of senators can force accommodation. By lowering the 60-vote threshold for matters of high controversy, the Senate would curtail this right and reduce the individual senator's power.
This is the trend at work in compelling up-or-down votes on the last few appellate judgeships held up by Democrats — or on John Bolton's ambassadorship. Does advise and consent mean merely to seek advice, or does it imply the need to take advice? If the Senate resists a particular nominee, should the president force its consent by all means available?
The answers to these questions are important with respect to nominations. And they could matter still more if the 60-vote threshold comes under pressure for other kinds of Senate business as well.
This challenge from the executive has been abetted to an unprecedented degree by a Senate leader who won his post through White House influence, and whose own interests are not the same as the Senate's. Majority Leader Bill Frist of Tennessee serves the will of the White House, in part out of loyalty and sympathy. But it is also no secret that he wants to reside there himself four years hence.
And it isn't hard to imagine which relationship with the Senate a prospective president might prefer, given a choice between the traditional test of wills and the command-and-control model envisioned by President Bush and Vice President Dick Cheney.