Pirates of the Senate

At first even I was fooled. Republicans in Congress are trying to abolish the time-honored filibuster? Of course, then I had to bone up on my research and get the facts straight. This was just Democratic hoopla and minority bickering. Hill insiders tell me that we will begin seeing Republicans hammer the liberal rhetoric on this issue in the coming weeks.

The truth is that Senate Republicans are only attempting to restore the “advice and consent of Constitutional obligations of the Senate for judicial nominees.” In layman’s speak, Senate leadership is proposing to reconsider cloture* rules on judicial nominees. This isn’t an elimination of the filibuster by any means.

Democrats are once again flip-flopping. Ten years ago the Democrats tried to abolish the filibuster altogether. Senators Bingaman, Boxer, Feingold, Harkin, Kennedy, Kerry, Lautenberg, Lieberman, and Sarbanes all wanted to end the filibuster permanently. Now they want to "preserve" it?

In 1995, the only Senators on record supporting the end of the filibuster were all Democrats, nine of whom are still serving in the Senate. (See Karen Hosler, “Senators Vote 76-19 To Maintain Filibuster,” The [Baltimore] Sun, 1/6/95)

Nor is changing these rules unconstitutional as some would have you believe. Senate debate is governed by rules adopted by the Senate every two years at the convening of each new Senate. The number of votes for cloture has gone up and down throughout the years. Originally two-thirds (67 votes) was required to end a filibuster. Those rules were eventually changed to three-fifths (60 votes).

Ironically, those who allege the unconstitutionality of this issue are forgetting that it is the responsibility of the Senate to confirm presidential nominees under Article II, Section 2 of the Constitution. To block votes on judicial nominees negates legislative obligations prescribed in our legal framework.

Senate Majority Leader Bill Frist (R-TN) has previously made proposals to adjust the rules so that a simple majority (51 votes) is required to end debate on judicial nominations only. The recent hype on the so-called “nuclear option” is to revisit this proposal to minimize the amount of votes needed to end debate.

This is largely a maneuver to fight fire with fire. Democrats in the Senate have been using the filibuster to block most of President Bush’s judicial nominations. This is a cheap political move lacking the refinements required of such a prestigious body. It is a misuse of the filibuster which was originally intended to block debate only on policy issues, but never on judicial nominations. Republican leadership is simply proposing that the Senate return to it’s Constitutional duties and move on with the business of the government.

Liberals argue that Republicans pulled the same tactics on Clinton nominees. The truth is that President Clinton’s nominees were not filibustered and never before has a judicial nominee with clear majority support been denied confirmation through a filibuster. According to David Reinhard of The Oregonian, the confirmation rate for Bush nominations is the lowest of any modern president. Reinhard says that,

“A better figure would compare Bush’s four-year appellate confirmation rate to recent presidents. According to the American Enterprise Institute’s John Lott Jr., Bush’s four-year rate was 69 percent, the lowest of any modern president. Bill Clinton’s rate was 74 percent.” (David Reinhard, Op-Ed, “Judge Not Lest Ye Be … Filibuster,” The Oregonian, 3/17/05)

There was a record number of Clinton nominees to the federal bench that were confirmed in 1994 under a Democratic majority in the Senate. Fifty-four of these nominees were pushed through in the 3 months prior to the 1994 elections. Conversely, ten of fifty-two circuit court nominees from the Bush White House have been filibustered according to a recent AP story (Jesse J. Holland, “Senate Confirms First Judge Of Bush’s Second Term,” The Associated Press, 4/11/05). Blocking votes on judicial nominees is unprecedented.

This is an issue of principle, not politics. The Senate should be concerned with fulfilling its constitutional obligations. Either it confirms or doesn’t confirm judicial nominees. To thwart that function is to shut down a major tenant of government, and the democratic process itself.

In a press conference yesterday, Senator Frist said, “At the end of the day, I fundamentally believe that advice and consent under the Constitution of the United States of America means that we should be given the opportunity to vote. And that's all that we're asking for. We're going to continue to work in that regard.”

The President’s nominees deserve a fair up or down vote. If these judges are as poor a selection as Senators like Minortity Leader Harry Reid (D-NV) say they are, then let the Senate decline their confirmation by vote. Anything else is poor gamesmanship.

In many respects this issue has been blown out of proportion. Legislative rules in both Houses of Congress are often amended. The purpose of the “nuclear option” is to advance the purpose of the U.S. Senate. For certain Senators to block that process makes me question whether they know why they are there to begin with.


*Cloture is the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes. Source: Glossary of Senate Terms