Back in January, not long after Senator Majority Leader Bill Frist committed his caucus to the nuclear option, Senator John Warner came as close as he has yet in taking a side on the filibuster debate now at a rolling boil in the Senate. Not surprisingly, for the seasoned legislator, it came the way of a typically non-declarative comment: “I tend to be a traditionalist, and the right of unlimited debate has been a hallmark of the Senate since its inception. Without question, though, I am strongly opposed to the use of the filibuster to block judicial nominations."
Since Tuesday, when Frist forced Warner to choose between those two principles by setting in motion a showdown over the filibuster, speculation on which sentence carries more weight for the senator has been the subject of intense debate. His vote, after all, could be decisive: While Arlen Specter and Maine's two senators are predictably unpredictable, Warner is cut from a different cloth. He's not dogmatically conservative (for instance, voting consistently with the Democrats on gun control issues), but he's fairly reliable; last year, he earned a rating of 72 from the American Conservative Union, bringing his lifetime score to 81. Not bad.
But it's precisely Warner's conservative bona fides that make his wavering over the filibuster debate such an issue. Throughout his quarter-century career, Warner has been wary of tampering with due process of the Senate rules. Most recently, he was one of a handful of senators -- Republican and Democrat -- to speak out against the Terri Schiavo bill. Warning of the bill's blatant disregard for the separation of powers, Warner cited the inviolability of Tenth Amendment as reason for opposing the bill, quoting from it (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”) and saying, “I believe it unwise for the Congress to take from the state of Florida its constitutional responsibility to resolve the issues in this case.”
As Warner goes, so may Ohio's Mike DeWine, or New Hampshire's John Sununu, and other reliably conservative senators who share Warner's concerns for the damage that eliminating the filibuster could do to the institution of the Senate. “For Warner, this is about the Senate's role in government,” one Senate aide told me. “He is having issues with Frist and the nuclear option because it dilutes the power of the Senate.”
And there's Warner's political quandary. In December 2002, Warner was one of Frist's original boosters. Following Trent Lott's resignation as majority leader over his favorable historical review of Strom Thurmond's presidential campaign, Warner was among the first GOP senators to call for his resignation. (To be sure, Lincoln Chafee of Rhode Island was the first. But his caucus listens to Chafee's words of wisdom like Mick Jagger listens to Keith Richards.) Soon, Warner banded with Senators Lamar Alexander of Tennessee and Sam Brownback of Kansas to nominate the young heart surgeon from Tennessee as majority leader.
Thus, to the extent that Warner considers the filibuster showdown a referendum on Frist's capacity as a majority leader, he may be inclined to support the good doctor. Further, if, in the darkest reaches of Warner's mind, he thinks that a Frist filibuster fizzle may help his fellow Virginian Senator George Allen's presidential aspirations, he may yet decide that desperate measures must be invoked to prevent “Allen in '08.” According to one source close to Warner, the sagacious septuagenarian sees Allen for the nitwit that he is. So Warner may conclude that if his vote to undermine the Senate rules of procedure boosts Frist's chances at the nomination (thereby forestalling an endless series of football metaphors in the 2008 general election), then that unhappy bargain must be struck.
One thing is certain: No matter how many telephone calls to his office that liberal or conservative activist groups can muster, Warner, who is eyeing retirement, is unlikely to be too swayed by grassroots politicking. “The odds are he won't seek another term,” says University of Virginia political analyst Larry Sabato. “He'll be in his eighties by 2008, and he doesn't want to be carried out in a stretcher like Strom Thurmond.”
So in the following days, as Warner deliberates his stance on the nuclear option, he'll likely juggle in his mind what's best for the institution of the Senate, what's best for his GOP, and what's worst for George Allen -- and not necessarily in that order.
Mark Leon Goldberg is a Prospect writing fellow.