The Politics of Filibusters
Republicans figure out that confirming judges is a political process.
Tuesday, May 13, 2003 12:01 a.m. EDT
Where's Jimmy Stewart when you need him? Two historic filibusters are currently under way in the Senate--one's been going on for months--but next to no one outside the Beltway has noticed.
Senate business proceeds as usual, the Members get to sleep in their own beds at night, and Miguel Estrada and Priscilla Owen's names come up only when repeated motions to close debate and bring their judicial nominations to a vote are defeated. Hollywood is not remaking "Mr. Smith Goes to Washington." All of which is exactly the way Democrats want it: They can defeat two Bush judges, and more down the road, without paying a political price.
So one can hardly blame Majority Leader Bill Frist for trying to shine a little light on the problem. The Democrats are imposing an extraordinary new standard for confirming judges--not a simple majority of 51 votes but a super-majority of 60, the number required to shut off debate. Both filibustered nominees have the support of a bipartisan majority, yet they are being denied the confirmation votes to which they are entitled under the advice-and-consent clause of the U.S. Constitution.
Mr. Frist's proposed solution is to change the procedure under which debate ends and a vote is taken, a process known as "cloture." He would amend Senate Rule XXII so that the number of votes needed to end a filibuster would fall from 60 to 57 to 54 to 51 on successive votes. This would preserve the essential purpose of the filibuster--which is to give the minority a chance to make their case--but not let them abuse the system by holding confirmable nominees hostage forever.
Georgia Democrat Zell Miller made an even more ambitious reform proposal in The Wall Street Journal in March, when he called for new cloture rules for nominations and legislation--not just nominations, as Mr. Frist proposes. Mr. Miller's proposal was in turn based on one in 1995 by Democrats Tom Harkin and Joseph Lieberman.
That last one had the support of none other than Tom Daschle, who said at the time that "Democracy means majority rule, not minority gridlock." Mr. Daschle hewed to a different principle on Sunday, when he told NBC's "Meet the Press" that Mr. Estrada and Judge Owen are "exceptions to the rule" that every nominee deserves an up or down vote in the Senate. Apparently he doesn't believe the Constitution should be applied equally to every American.
Under current practice no Senate rule, including the 60-vote cloture rule, can be changed except by a two-thirds majority. Which is where things get interesting, constitutionally speaking. Many legal scholars--liberal and conservative--argue that Rule XXII is unconstitutional because it binds future Senates to rules made by a past Senate. "It is an ancient principle of Anglo-American law that one legislature cannot bind a succeeding legislature," Steven Calabresi of Northwestern Law School, told the Senate last week.
Catholic University's Douglas Kmiec made a similar point in The Wall Street Journal in March, and Lloyd Cutler, White House Counsel to Presidents Carter and Clinton, wrote in 1993 that "the Senate rule requiring a super-majority vote to cut off debate is unconstitutional." Vice Presidents Nixon, Humphrey and Rockefeller, while presiding over the Senate, have all held that Senate rules can be changed by a simple majority.
If the current Senate did that with Rule XXII--obtain a majority vote to change the cloture rules for nominations--Vice President Cheney would presumably agree. That would leave the Democrats with the option of going to court, where the Supreme Court could take the case or, more likely, decide it was a political dispute best left to the Senate to resolve. The President's nominees would be seated.
We've said it before, but it's worth repeating that the Democrats' judicial filibusters are unprecedented in Senate history. Filibustering nominations wasn't even permitted until 1949 and the sole judicial nominee stopped by a filibuster was Abe Fortas, LBJ's nominee for Supreme Court Chief Justice, who faced charges of corruption. Meanwhile, the Democrats are just warming up. A third appeals-court filibuster looks likely this spring, and a Supreme Court filibuster could be next if there's a vacancy this summer.
The system for confirming judges is clearly broken. Democrats are playing politics with Senate rules, but they now profess shock and outrage that Republicans want to play politics too and reform the filibuster rules being abused. Sounds to us as if Republicans are on to something.
URL:http://www.opinionjournal.com/editorial/feature.html?id=110003487 |
