- The Washington Times - Saturday, June 21, 2003

Senate Democrats have taken advantage of every parliamentary maneuver available, including the filibuster, to obstruct President Bush’s judicial nominations. Senate Republicans have become so frustrated there is talk of attempting to change the Senate rules to make it easier to break a filibuster in the case of judicial nominations. However, it is particularly disconcerting that some Republicans are allowing their frustration to cloud their reading of the Constitution.

Republicans love the idea of requiring a supermajority vote in Congress to raise taxes, which would be prudent public policy. In 1993, Senate Republicans used the filibuster to defeat the ill-conceived Clinton “stimulus package,” which contained the infamous BTU tax. Isn’t it ironic, though, that some Republicans are going so far as to suggest that the filibuster is “unconstitutional” when it is used to thwart a vote on a judicial nominee?

Sen. John Cornyn, Texas Republican, argues that while the filibuster is constitutional in general, it is unconstitutional in the specific instances when it is used against a presidential nomination because it “threatens presidential power.” Mr. Cornyn believes that judicial nominee filibusters are “far more legally dubious than filibusters of legislation, an area of pre-eminent congressional power.” But a plain reading of the Constitution indicates that the area of legislation is far from “an area of pre-eminent congressional power,” when the president may veto legislation that can only be overridden by a two-thirds vote of both Houses.

Sen. Kay Bailey Hutchison, Texas Republican, questions the filibuster on other grounds: “[The Founding Fathers] specified in the Constitution when a larger [than simple majority] vote was necessary. … So to say that a judge should require a supermajority is to amend the Constitution without going through the process.”

The subtle, but fatal, fallacy common to both senators’ arguments is the false presupposition that the Constitution’s unwritten default setting on voting rules is a simple majority seeming to emanate from penumbras of other sections of the Constitution. Mr. Cornyn finds simple majority rule lurking in the shadows of “presidential power,” while Mrs. Hutchinson finds an unstated general constitutional directive of simple majority rule as a reflective mirror image of all the other sections of the Constitution in which a supermajority is the specified voting rule.

The Appointments Clause of Article II, section 2 of the Constitution is clear: The president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court, and all other officers of the Unites States.”

Nowhere does it say the Senate must give its advice and consent by a simple majority vote. Section 5, Clause 2 of Article II is equally clear: “Each House may determine the rules of its proceedings.”

A strict interpretation of the Constitution then indicates that it is within the discretion of each body of Congress to determine the voting rule in all of its proceedings other than those for which a particular rule is explicitly specified in the Constitution.

Had the Founding Fathers intended any specific rule to apply to the Senate’s judicial advice-and-consent proceedings, they most certainly would have said so, explicitly, as they did in the case of treaties, the negotiation of which is as much an exercise of “presidential power” as nominating judges. And the exception that proves the rule that majority rule is not the Constitution’s default voting rule is the fact that the Founding Fathers felt compelled to specify explicitly that “a majority of each [House] shall constitute a quorum to do business.”

The filibuster rules of the Senate do not need to be changed, they simply need to be honored in practice rather than merely in the abstract. Under Majority Leader Mike Mansfield, a “tracking” system devised by then Majority Whip Robert Byrd was put into place. Tracking allows the majority leader — with unanimous consent or the agreement by the minority leader — to have more than one bill pending on the floor as unfinished business.

Before the introduction of tracking, a filibuster would stop the Senate from moving on to any other legislative activity. With a two-track system, the Senate simply puts aside the filibustered measure and moves on to other legislation. The result of this tracking system has been an explosion in the threat and use of filibusters. During the 19th century there were only 23 filibusters. Between 1970 and 1994 there have been 191 filibusters.

As Sen. Robert Byrd, West Virginia Democrat, acknowledges, today it’s the threat of a filibuster that matters. Mr. Byrd calls it a “casual, gentlemanly, good-guy filibuster. … Everybody goes home and gets a good night’s sleep, and everybody protects everybody else.” Mr. Byrd may have more accurately portrayed this pseudo-filibuster as obstructionism on the cheap.

If Democrats were forced to stage a real filibuster, they would have to follow the fairly stringent rules for carrying on a filibuster and Republicans would be required to maintain a quorum to force the filibuster to continue indefinitely, lest the Democrats end debate and go home for a good night’s rest. During the civil-rights debate, senators were seen in the Senate Chamber in bathrobes, and cots were set up in the cloakrooms. And, if the majority needed to maintain a quorum, they could summon the sergeant at arms to arrest senators who weren’t present in the chamber.

Following a few days of a real forced filibuster, most Democrats would peel away from their irresponsible obstructionism one-by-one, and the public would see on the nightly news exactly who is really obstructing the business of the people.

Therefore, Senate Republicans should forget procedural shenanigans, break out the cots and arrest a few senators, if necessary. There’s no better way to show support for the president’s nominees than to actually fight for them rather than staging an ersatz fight and letting them languish for years in political purgatory.

Lawrence Hunter is the chief economist and Shaun Small is the senior policy analyst at Empower America.

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