… amid fog

The fierce political battle over President Bush’s judicial nominations may soon reach a climax, as talk of a compromise swept through the Capitol this week.

But with each side escalating its rhetoric to a fever pitch and their loyal allies mounting a multimillion-dollar ad campaign, the possibility of a bipartisan deal seemed problematic at best.

The whole business has been clouded by a confusing fog of issues, from religious beliefs to constitutional checks and balances, that seem to have strayed from the central rulemaking issue before the Senate: Should a minority of senators be allowed to prevent a simple up-or-down vote on judicial nominees?

The Democrats believe they have the right to use — I would say abuse — the filibuster rule for unlimited debate in confirmation proceedings for the sole purpose of preventing a vote, unless a supermajority of 60 senators agrees to end that debate and proceed to a roll call vote.

But the Constitution gives them no such right and for more than 200 years the Senate, with virtually no exceptions, has brought a president’s judicial nominees up for a vote in the Judiciary Committee, and if reported to the full Senate, for an up-or-down vote by a simple majority.

The Constitution merely says the president “shall have power, by and with the advice and consent of the Senate” to appoint judges. The Senate has the right to reject such judges, but does it have the legal right — once a nomination is before the Senate — to actively prevent a vote on the president’s nominee in a self-governing democracy such as ours?

Clearly, the minority does not have that right and the Democrats who claim they do are, well, being undemocratic.

The Senate’s filibuster rule of unlimited debate (the House has no such rule) was created to guarantee the rights of the minority for a full and fair discussion of every piece of legislation. The rule is there to prevent the tyranny of the majority from riding roughshod over the minority.

A single senator can object to a bill and filibuster against it until the majority can get cloture to end “debate” and proceed to a vote. Such a rule has an appropriate place in legislative proceedings no matter how inconvenient it can sometimes be for the orderly flow of public business.

The genius of our representative form of government is in part due to the legislative hoops and hurdles the Founding Fathers created to make it difficult for bad legislation to become law.

Unlimited debate, by which a senator may hope to kill or at least stall a bill or amendment to extract some change in its provisions, was put into the Senate’s rules for just this reason.

But applying the filibuster rule to prevent the Senate from carrying out its constitutionally granted authority to approve or disapprove each judicial nominee clearly violates our nation’s governing document.

It is not entirely clear a majority of Americans fully understand the ramifications of all this. A Washington Post-ABC News Poll this week found 66 percent of 1,007 randomly selected adults oppose Senate Majority Leader Bill Frist’s proposal to require a majority vote for all judicial nominees.

But note how the question was phrased: “Would you support or oppose changing Senate rules to make it easier for the Republicans to confirm Bush’s judicial nominees?” Nothing in this question reflects the real issue before the Senate, which is bringing the president’s nominees up for a vote.

The partisan phrase “easier for the Republicans,” leaves a lot to the imagination if one doesn’t know what the rule change actually would do.

But what if you asked the question this way: “Would you support or oppose changing Senate filibuster rules to ensure President Bush’s judicial nominees be given an up-or-down vote?” I think the response would be very different.

This is a parliamentary debate over the abuse of the rules, one the Republicans threaten to end by inserting a little language that just tells the Democrats they no longer will be able to deny the Senate majority’s right to vote on federal judgeships.

At stake are 10 of President Bush’s nominees, most of them trapped in filibuster limbo for years merely because they are too conservative for the Democrats’ more liberal tastes.

But something deeper is at stake here, too, and that is our democratic system of government and whether we will allow abuse of the legislative rules to impede a president’s election mandate and the full and fair disposition of constitutionally granted presidential powers to appoint judges.

Mr. Bush and the Senate’s Republican majority are not demanding anything extraordinary here. They simply want the right to vote on these nominations, up or down, and the Democrats don’t because they lack the votes to defeat them.

Donald Lambro, chief political correspondent of The Washington Times, is a nationally syndicated columnist.