Wednesday, March 23, 2005

Judge not lest ye be ... filibustered

Commentary by David Reinhard


David Reinhard

Democrats threatened Tuesday to shut down the Senate if, according to an Associated Press dispatch, "Republicans unilaterally change the rules to assure confirmation of President Bush's controversial court appointments."

Question: If these court appointments are so "controversial," why are Senate Democrats afraid of giving them a simple Senate vote?

By definition, a nominee who's so controversial, so far out of the mainstream, would never be able to win a majority of senators needed for confirmation.

Senate Democrats have their own question: Isn't approval of 204 out of 214 Bush judges in the first term, as Democratic leader Harry Reid says, "a pretty good deal?"

Answer: Not really, since Reid's number is one of those meaningless, if true, political concoctions. It includes district and appellate court judges. It hides the fact that the 10 unconfirmed individuals were appellate court nominees. In fact, they were not, as the Nevada Democrat says, even "turned down." They weren't given an up-or-down vote, because Reid's Democrats feared the nominees had the 50-plus votes needed for confirmation.

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.

The Democrats' decision to deny Bush's nominees an up-or-down vote accounts for Bush's low success rate. It also has Republicans talking about changing the Senate filibuster rules on judicial nominations—and Democrats talking about bringing Senate business to a halt.

It's tempting to brush all this off as standard judicial nomination politics. Democrats are just doing to Republicans what Republicans did to Democrats. In requiring a 60-vote super-majority for judicial nominations, however, Senate Democrats are doing something without precedent and amending the Constitution, which requires only a simple majority for court nominations.

Reid and company have used the Senate filibuster rule to permanently deny votes to nominees with clear majority support. That's never been done before. Thus, Senate Democrats have undertaken their own constitutional convention and state ratifications to amend the Constitution. And they expect the Senate GOP to ignore their extra-constitutional 60-vote requirement, at least until there's a Democrat in the White House, or they'll shut down the Senate.

Would Senate Republicans be out of line to change the Senate rules so filibusters cannot be used to deny court nominees an up-or-down vote? Would such a move—the "constitutional" or "nuclear" option--end the rule of law or Senate tradition as we know it?

Please. Senate rules did not allow the filibuster for anything but legislation until 1949, and distinguished senators have testified to the importance of up-or-down votes on judicial nominees in the decades since.

"Everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor ... It is totally appropriate ... to reject every single nominee if they want to. That is within their right. But it is not ... appropriate not to have hearings on them, not to bring them to the floor and not to allow a vote."

That's Delaware Democrat Joe Biden, in 1997.

"The president and the Senate do not always agree. But we should resolve these disagreements by voting on these nominees--yes or no."

That was Massachusetts Democrat Ted Kennedy—in 1998.

Is a Senate rule change appropriate to ensure a yes-or-no vote on nominees?

"This Congress is not obliged to be bound by the dead hand of the past ... The first Senate ... approved 19 rules by a majority vote. Those rules have been changed from time to time ... So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate."

That was West Virginia Democrat Robert Byrd, in 1979, when he was working to change Senate rules and before his recent speech likening Republicans who were considering Senate rule changes to Adolf Hitler and the Nazis.

I wonder if Republicans went so far then as to threaten to shut down the Senate.

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