The power of 41 — or 42

Perhaps Fred Thompson, the former senator and presidential candidate, had the best advice for Senate Republicans.

“They need to make sure they get this straight,” Thompson told a conservative audience recently. “Up until now, filibusters have been a bad thing. Now, filibusters are a good thing.”

And that’s why Republicans are so relieved — really, really relieved — by Sen. Saxby ChamblissClarence (Saxby) Saxby ChamblissLobbying world GOP lobbyist tapped for White House legislative affairs The Hill's Morning Report - Gillibrand drops out as number of debaters shrinks MORE’s (R-Ga.) big victory in last week’s Senate runoff election. Chambliss’s win means that even if Al FrankenAlan (Al) Stuart FrankenCNN publishes first Al Franken op-ed since resignation Political world mourns loss of comedian Jerry Stiller Maher to Tara Reade on timing of sexual assault allegation: 'Why wait until Biden is our only hope?' MORE defeats Sen. Norm Coleman (R) in Minnesota, Republicans will still have 41 members in the Senate.


For a long time, Sen. Mitch McConnellAddison (Mitch) Mitchell McConnellCoronavirus talks on life support as parties dig in, pass blame Jobs report poised to light fire under COVID-19 talks Overnight Health Care: Ohio governor tests positive for COVID-19 ahead of Trump's visit | US shows signs of coronavirus peak, but difficult days lie ahead | Trump: COVID-19 vaccine may be ready 'right around' Election Day MORE (R-Ky.), the minority leader, has talked about “the power of 41.” Truth be told, it’s a pretty sad state of affairs for Republicans, longing to have just enough votes to stop Democratic initiatives. But that’s what you cling to after an across-the-board defeat.

Of course, McConnell was hoping for a bit more — the “power of 42” or the “power of 43,” maybe even the “power of 44.” Alas, the best he can hope for is 42, if Coleman prevails.

In any event, now that Republicans have their filibuster-ready number, even if it’s just 41, perhaps the most interesting question will be whether they will stick to filibusters of Democratic legislative initiatives, or whether they will dare, as Democrats did from 2003 to 2005, to filibuster some of the president’s judicial nominations.

Those were some of the most contentious days in Senate memory. Out of power in the Senate, the House and the White House, Democrats used the filibuster in an unprecedented way, blocking a whole slate of Bush nominees to the federal courts of appeals.

Republicans argued, correctly, that it was an outrageous abuse of the filibuster. Then-Senate Majority Leader Bill Frist (R-Tenn.) threatened the “nuclear option,” which was a parliamentary maneuver to kill the judicial, as opposed to legislative, filibuster.


“For 70 percent of the 20th century, the same party controlled the White House and the Senate, yet no minority denied a judicial nominee with majority support an up-or-down vote on this floor,” Frist said during the 2005 debate. “Minorities showed restraint. They respected the appointments process.”

The Senate was close to meltdown. But the Gang of 14 deal brought peace. You might call it peace through strength, from a Republican point of view; the GOP majority had 55 votes back then, and in the face of Frist’s threat, Democrats dropped their filibusters.

Now, all the strength is on the Democratic side. And some Republicans, in their position of weakness, are re-thinking things.

During a meeting at the Republican convention in St. Paul, Minn., in September, a prominent GOP senator said that if a Democrat were elected president, and Democrats kept control of the Senate, then Republicans might reconsider their opposition to the judicial filibuster.

And here we are.

I’m sure Democrats would find a Republican filibuster of an entire slate of Barack ObamaBarack Hussein ObamaBiden's immigration plan has serious problems Hearing for Twitter hack suspect Zoom-bombed by porn, rap music Read: Sally Yates testimony MORE’s judicial nominees to be an outrageous abuse of the filibuster. And it would be. But who’s to say it won’t happen?

Sure, there would be hypocrisy on all sides. But Democrats would have only themselves to blame. They pioneered new ways to obstruct some Bush nominees. Now, they shouldn’t be surprised if they face their own tactics.

And besides, they really don’t have too much to worry about. Back in the Gang of 14 days, the party with the most votes ended up winning most of the battles.

That’s why we had the election.

York is a White House correspondent for National Review. His column appears in The Hill each week.