- The Washington Times - Monday, May 23, 2005

For more than two years, the Democrats’ systematic filibustering of President Bush’s appellate-court nominees has embroiled the Senate in a titanic struggle. The culmination could come today if the Senate votes on the so-called nuclear option, by which Republicans would use a simple majority vote to ban judicial filibusters.

Even if, for whatever reason, Senate Majority Leader Bill Frist does not unleash it today, the likelihood is that the Republican majority during the 109th Congress will feel compelled to implement it eventually.

The fight over appellate-court nominees is extremely important, and it must be waged. But everyone understands that the battle over circuit-court judges is also a prelude to the war over a potentially imminent Supreme Court vacancy (or vacancies), which would be the first in more than a decade. Since the last Supreme Court appointment occurred in 1994, the Democrats have failed to win a Senate majority during each of the six subsequent biennial elections. Meanwhile, Mr. Bush won the presidency in 2000 and 2004. Given that electoral history, if Democrats feel entitled to change the ideological balance of the Supreme Court in their favor or if they are determined to preclude Republicans from altering the court’s balance in favor of Republicans, then the nuclear option will become inevitable. If not today, then probably in the not-too-distant future.

Depending upon one’s perspective, the path to today’s showdown began with different events. Democrats point to the 1968 filibuster against Associate Justice Abe Fortas, whom lame-duck President Johnson sought to elevate to chief justice one month before the presidential election. Republicans argue that the Fortas filibuster was bipartisan (at least 19 Democrats opposed him, including the Democratic chairman of the Judiciary Committee) and that Justice Fortas failed to demonstrate that he enjoyed majority support in the Senate, where only 45 senators voted to end the filibuster.

Republicans point to the rejection of Judge Robert Bork, who was unanimously confirmed to the U.S. Court of Appeals for the D.C. Circuit in 1982 and whom President Reagan nominated to the Supreme Court in 1987. Despite having participated in hundreds of rulings and opinions over six years on the D.C. appellate court, not one of which was overturned by the Supreme Court, Judge Bork was nonetheless considered by 52 of 54 Democratic senators to be “outside the judicial mainstream.”

Healthy institutions, including the Senate, evolve to deal with new challenges and forces. As the courts have increasingly become the ultimate arbiters governing many religious and social issues, ranging from school prayer to abortion to marriage, the selection of judges has become more political and ideological. In this environment, the reality is that Senate tradition has become less important to both political parties than gaining substantive victory. Depending on the circumstances, members of both parties have reversed positions on numerous procedures, ranging from the Senate’s “blue-slip” policy to the entitlement of an up-or-down vote on the Senate floor. Even former Democratic Majority Leader Robert Byrd, who is leading the charge against the use of a majority vote to end judicial filibusters, argued in 1979: “This Congress is not obliged to be bound by the dead hand of the past,” approvingly adding, “The first Senate, which met in 1789, approved 19 rules by a majority vote.”

In truth, both sides have exploited dormant procedures, in committee and on the floor, that were not systematically used before. The Democrats’ systematic use of the filibuster, which is unprecedented, is the latest manifestation of a trend of evolving judicial-confirmation traditions that has been ongoing since — take your pick — 1968 or 1987.

Traditional measures, such as the filibuster, were bearable when used sparingly. Now that Democrats have employed the tactic on a regular basis, they, as the minority party, have overplayed their hand. So, the Republican majority has turned to its own dormant procedure — the 51-vote rule-change first used in 1789, but rarely since then. And the Senate will continue to evolve as new or rarely used procedures are adapted to manage new Senate passions and forces.

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