The Republican-led Senate Rules Committee yesterday approved changing the body’s rules, essentially prohibiting filibusters against judicial nominees in preparation for a Supreme Court vacancy that could come as early as this week.
The resolution, which faces strong opposition on the Senate floor, could itself be filibustered, even if all Republicans support it. And because it’s a proposal to alter the rules, breaking such a filibuster would take 67 senators, rather than the 60 needed in most cases.
The move by Republicans comes after months of Democratic filibustering against two lower court nominees — Washington lawyer Miguel Estrada, nominated to the D.C. Circuit U.S. Court of Appeals, and Texas Supreme Court Justice Priscilla Owen, nominated to the 5th Circuit.
And just last week, Sen. John Kerry, Massachusetts Democrat and presidential contender, vowed to filibuster any Supreme Court nominee who doesn’t support abortion.
A majority of senators — including some Democrats — support both Mr. Estrada and Justice Owen, but the Democratic leadership is using procedural maneuvers to prevent final votes on the nominees.
Sen. Mitch McConnell, Kentucky Republican and member of the Rules Committee, said the filibusters are a dangerous precedent and pointed to cases where he agreed to give nominees a final vote on the floor and then voted against them.
It was lost on no one at yesterday’s hearing that the move to change the rules comes during the final week of the Supreme Court term, when one or possibly two Supreme Court justices are predicted to retire. Both sides speculate the battle to confirm a replacement will be drawn out and bitter.
“I think this is an appropriate change in the rules,” said Rules Committee Chairman Trent Lott, Mississippi Republican, before quickly approving the measure on a 10-0 voice vote. No Democrats on the panel showed up for yesterday’s hearing and the Republicans supported it unanimously.
Democrats likened the action to childish pique and warned of the fallout if Republicans “go nuclear,” which basically means using a parliamentary procedure to ram the rules change through on a simple majority vote.
“It reminds me of a spoiled child throwing a temper tantrum,” Sen. Charles E. Schumer, New York Democrat, said later in a prepared statement. “Maybe we’re due for a time out so everyone can get some perspective here.”
Senate Majority Leader Bill Frist, Tennessee Republican and sponsor of the bill, said Democrats have dismissed 200 years of precedents by filibustering the president’s judicial nominees.
“It is the Democrats right now who are engaged in a nuclear option, attempting for the first time in the history of this country to change the operating precedent of the United States Senate,” he said after the hearing. “I’m simply returning the operation of the Senate to the way we’ve operated the last 200 years.”
Also, Mr. Frist said, Democrats have promised to filibuster more nominees.
Of President Bush’s 134 nominees who have come to the Senate floor, only Mr. Estrada and Justice Owen have been filibustered.
“Our friends across the aisle are saying that 98.4 percent isn’t good enough,” Mr. Schumer said. “It’s like they’re saying, ‘If we don’t win all the time, we’re going to pick up our marbles and go home.’”
Mr. Frist acknowledged yesterday that his bill faces strong opposition, even possibly among fellow Republicans wary of the day when Democrats rule the body again. If his proposed rule change ultimately passes, Republicans could confirm any nominee supported by the entire caucus of 51 senators.