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Politics : American Presidential Politics and foreign affairs -- Ignore unavailable to you. Want to Upgrade?

To: sandintoes who wrote (1213)	5/16/2005 3:29:14 PM
From: Peter Dierks	Read Replies (1) \| Respond to of 71588

How We Got Here Why Republicans can't let the judicial filibuster succeed. Monday, May 16, 2005 12:01 a.m. EDT Barring a surprise last-minute deal, this week Senate Majority Leader Bill Frist will ask for a ruling from the chair--Vice President Dick Cheney presiding--that ending debate on a judicial nominee requires a vote of a simple majority of 51 Senators, not a super-majority of 60. The nuclear option--aka the "constitutional option"--will have been detonated. Judicial filibusters, R.I.P. This will not be the world's greatest deliberative body's greatest moment, and the only thing we know for sure about what will happen next is that the reputation of the Senate will suffer. It's a shame it has come to this. But at this point it would be worse if Republicans let a willful minority deny the President's nominees a vote on the Senate floor. On the eve of this brawl, it's worth recalling how we got here. Our own choice for what started the modern bitterness would be 1987 and the Robert Bork fight. There were previous court battles--Abe Fortas and Clement Haynsworth come to mind--but the trashing of such a widely respected jurist marked that date as the one when nominations became political campaigns. During the Clinton years some GOP Senators returned the favor by delaying or blocking individual nominees. But even when Republicans had a Senate majority, there was nothing comparable to the demolitions of Mr. Bork or Clarence Thomas. The judicial filibuster of the last two years marks another political escalation--this time twisting a procedure used historically for the most important legislative debates into an abuse of the Senate's advise-and-consent responsibility. Had their nominations been allowed to go to the floor, every one of the 10 men and women filibustered in the last two years would have been confirmed. The audacity of the Democrats' radicalism is illustrated by the breadth of their claims against the nominees. It isn't just one nominee they object to; it's 10, and counting. It isn't just abortion they're worried about but the entire range of constitutional law. Priscilla Owen is said to be a judicial "activist" for a decision interpreting Texas's law regarding parental notification of teens seeking abortions. Janice Rogers Brown is "against" affirmative action and speaks bluntly in public. Brett Kavanaugh is portrayed as a radical for defending executive privilege. William Pryor is hit on the First Amendment. Richard Griffin is "anti-union" and "anti-worker." William Myers is "hostile" to the environment. Every one is labeled an "extremist" and unacceptable no matter their experience or their "well qualified" ABA rating. This also marks a political escalation in reaching below the Supreme Court to the circuit courts of appeal. These nominations have long been considered more or less routine, the place where the Scalias, the Borks and the Ruth Bader Ginsburgs could serve the country and prepare for the day they might be nominated to the High Court. With the filibuster, Democrats are denying an elected President the ability to fill out even the lower courts. They are going to such bitter lengths, we suspect, precisely because they view the courts as their last hold on federal power. As liberals lost their majority status over the past 30 years, they have turned increasingly to the courts to implement their political program. If Democrats succeed in blocking these nominees, they will feel vindicated in their view that judicial activism pays. They will also conclude that Senate obstructionism works, and so will dig in for more of it. We know some conservatives worry about undermining a process that protects minority rights. But the filibuster is a Senate rule that has been changed frequently over the years, while the right of a President to nominate judges is written into the Constitution. Only one judicial nominee--Fortas for Chief Justice--has ever arguably been filibustered and that was for the purpose of taking a straw vote on his prospects, not to deny him an up-or-down vote on the Senate floor. Democrats who point to other judicial filibusters are deliberately confusing the distinction between a filibuster and a vote for "cloture," or to end debate. (The best exposition on this subject is a 2001 paper by Richard Beth of the Congressional Research Service.) As for Republicans who want to preserve the option of filibustering a future nominee, it'd be just as wrong for them to do so. And Democrats willing to use the filibuster to block judges would not have any qualms about using the nuclear option themselves to kill a filibuster in the future. Ted Kennedy and Chuck Schumer believe in the "whatever it takes" school of politics. This is at its core a political fight, and elections ought to mean something. Republicans have gained Senate seats in two consecutive elections in which judicial nominations were among the most important issues, including against the Senate Minority Leader. The one Democrat from a red state who won last year, Ken Salazar of Colorado, did so by promising to oppose judicial filibusters; he now seems to have changed his mind after sipping the Beltway's partisan punch. Perhaps the coming showdown will lead to more political bitterness, but we doubt Democrats will be able to follow through on their pledge to shut down the Senate; the public wants other things done. And who knows? If Democrats can't succeed any longer in legislating through the courts, maybe they'll even return to trying to win power the old-fashioned way, through elections.