- The Washington Times - Thursday, April 28, 2005

Making up my mind on important policy issues has never been difficult — until now. I can’t decide whether I am for or against Republican efforts to change the rules governing how judicial nominations are brought to the floor of the U.S. Senate for a vote. There is no question Democrats have been blocking President Bush’s nominees, but I am still uncomfortable with how the GOP is trying to solve the problem.

In unprecedented fashion, the Democrats have been able to hold up a third of the president’s nominees for appeals court vacancies. Some nominees have languished for years, despite impeccable credentials. Mr. Bush nominated Priscilla Owen to the U.S. 5th Circuit in 2001, and she has yet to get a vote by the Senate. Miguel Estrada, nominated to the D.C. Circuit, became so discouraged after more than two years of waiting for a vote that he asked the president to withdraw his nomination. The Democrats have blocked these nominations by abusing Senate rules on debate.

Until 1917, the Senate allowed for unlimited debate, which enabled a single-minded senator or group of senators to kill bills (and occasionally, nominations) they opposed by simply talking them to death. According to the official Senate Web site, senators then set some restrictions on debate at President Woodrow Wilson’s suggestion, allowing a two-thirds vote — or 67 senators in today’s terms — to invoke cloture and end debate. In 1975, senators again modified their rules, reducing to 60 the number of senators needed to force a vote.

At the time, it was mostly Democrats, who were in the majority, who favored limiting minority rights. As Sen. Edward Kennedy then said: “Again and again in recent years, the filibuster has been the shame of the Senate and the last resort of special interest groups. Too often, it has enabled a small minority of the Senate to prevent a strong majority from working its will and serving the public interest.”

But the most significant change in filibuster rules came later, when, by gentlemen’s agreement, the Senate leadership decided the mere threat of a filibuster would be enough to stop a vote. Instead of forcing obstructionist senators to take to the floor for hours on end, the Senate began operating under a two-track system that allows legislation and other business to move through the Senate whenever a filibuster is threatened. Instead of pulling in the cots and have senators stay up all night reading recipes into the Congressional Record, 41 senators simply indicate their unwillingness to allow a vote, and the matter is put aside — which is the process Democrats have used to derail Bush’s judicial nominees.

If the Republicans want to force a vote on the president’s nominees, they don’t have to change the filibuster rules permanently, or even adopt the so-called “nuclear option” of allowing Vice President Richard Cheney, acting in his constitutional role as presiding officer of the Senate, to rule that executive matters — specifically judicial nominations — are not subject to a cloture vote. Why not just insist senators who want to filibuster actually do so, halting Senate work?

If the Democrats really believe stopping someone like Janice Rogers Brown from becoming an appeals court justice is worth grinding Congress to a stalemate, let them. They’ll need more time than a filibuster provides to convince most Americans — who can watch the talkathon on TV, thanks to C-SPAN — that an African-American woman re-elected to the California Supreme Court in 1998 with 76 percent of the vote is an “extremist.” Not that they won’t try. Indeed the Democrats’ scurrilous campaign against President Bush’s nominees has been sickening. But why do Republicans want to keep Americans from witnessing Democrat perfidy in prime time?

The more I think about it, the more I am convinced Republicans would make a mistake getting rid of the filibuster. Republicans won’t be in the majority forever, and they may rue the day they deprive themselves of the ability to block a candidate to some future Supreme Court. Worse, they may end up making themselves look like the heavies instead of forcing the Democrats to take center stage as the real fanatics. Let the filibuster stay — and force the Democrats to actually use it.

Linda Chavez is a nationally syndicated columnist.

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