The coming incineration of the judicial filibuster

It is about time that the Senate's advise and consent duties were put back into the proper Constitutional freamework. - Sailor


REVIEW & OUTLOOK
Going 'Nuclear'
The coming incineration of the judicial filibuster.
Monday, January 24, 2005 12:01 a.m. EST
OpinionJournal.com

It's been a long time coming, but we now have an approximate date for a confrontation in the Senate on judicial nominations. Majority Leader Bill Frist has announced that if Democrats filibuster the nominations he expects to bring to the floor next month, he'll take action.

Finally. Perhaps the biggest failure of Mr. Frist's leadership in the last Congress was his inability to corral Republicans and stop the Democrats' unprecedented filibuster of 10 of President Bush's appeals-court nominees. It was the first time in U.S. history that the filibuster had been used against nominees to the appellate bench, as a Congressional Research Service paper has amply shown.

Mr. Bush has said he will re-nominate those men and women left over from his first term who are willing, and so the battle is about to be joined again. From the filibuster list, that includes Priscilla Owen, William Pryor, Henry Saad and Janice Brown. These highly qualified nominees had bipartisan support in the last Congress and would have won confirmation by majority vote, but they were denied up-or-down votes on the Senate floor.

Which brings us to the proposed change in Senate precedents that Democrats call the "nuclear option" to make it sound radical. If the Democrats filibuster again, Mr. Frist would ask for a ruling from the presiding officer that under Senate Rule XXII only a simple majority vote is required to end debate on judicial nominations. Assuming 51 Senators concur, the Senate would then proceed to an up-or-down floor vote on the nominee.

What this should really be called is the "majority-vote advice-and-consent" option. The aim is to restore the Founders' intent when they gave the Senate the responsibility of confirming or rejecting a President's judicial picks. The Constitution requires a simple majority vote and says nothing about a super-majority of 60 being needed to stop a filibuster.

Democrats inclined to cry foul would benefit from studying Senate history. They could start by querying their own Senator Robert Byrd who, during his years as Majority Leader, employed the same tactic four times to reinterpret Senate precedents. Martin Gold and Dimple Gupta detail this history in an essay in the current Harvard Journal of Law & Public Policy.
The history of the filibuster itself also bears noting--particularly by those Republicans who are worried about "giving up" a useful tool when they return to the minority. No one was more concerned with checking majority passions than the Founders, but even they never felt the need for a super-majority Senate voting requirement. The filibuster first appeared in the 1830s during the debates over the Bank of the United States and by 1917 had gotten so out of control that the Senate passed its first "cloture" rule limiting debate. It's been modified numerous times since then, and only in recent years has it evolved to where just about anything that passes (save the annual budget) needs 60 votes.

We don't agree, as some of our pro-filibuster friends on the right argue, that the filibuster was instrumental in stopping the New Deal and the Great Society. Those efforts ended as their excesses became clear and political support ebbed. Some argue that the threat of a filibuster saved us from HillaryCare in 1994, but we think that it was dying of its own weight and would never have had even 50 votes. In any event, no one is talking about doing away with the legislative filibuster. The "nuclear option" would stop only filibusters of judicial nominees.

One of the weakest objections offered by some Republicans is that Democrats will do the same thing in some future Senate. Well, yes, but we doubt Republicans would ever have the nerve or unity to filibuster a Democratic nominee, and Democrats have shown in their willingness to filibuster that they don't need a GOP precedent to do whatever they want. They'll "go nuclear" if it suits Ted Kennedy's purposes, whether Republicans do it first or not.

It's possible Mr. Frist won't have to pull this trigger, or at least he won't if his 55 Republicans hold firm. It hasn't escaped the notice of the 17 Democrats up for re-election in 2006 that obstruction of Mr. Bush's judicial picks was one reason Tom Daschle was defeated last November. Colorado's newly elected Democrat, Ken Salazar, has said he hopes all nominees get an up-or-down vote.

Democrats may decide the wiser course of action is to agree to limit debate on judicial nominations. If so, there's a ready-made, face-saving proposal at hand. In the last Senate, Mr. Frist and Democrat Zell Miller proposed a three-step process to gradually cut off debate on judicial nominees. This was based in turn on a plan put forward a few years earlier by Democrats Joe Lieberman and Tom Harkin. Whether it's nuked or not, the judicial filibuster deserves to be defeated.