- The Washington Times - Wednesday, November 12, 2003

Last week, I announced that the Senate would sustain an extraordinary all-hours debate on judicial confirmations and on the nature of each senator’s duty and right to give “advice and consent” to the president’s nominees as the Constitution requires.

The continuous debate will be framed by the bipartisan effort to get honest, up or down votes for 5th U.S. Circuit Court of Appeals nominee Justice Priscilla Owen of Texas, denied a vote on three previous occasions, and for two new circuit court nominees from California, Judge Carolyn Kuhl (9th Circuit) and Justice Janice Rogers Brown (D.C. Circuit).

We also will debate my bipartisan proposal, cosponsored with Sen. Zell Miller, Georgia Democrat, and others, to limit the use of the filibuster as to all nominations — a proposal that I believe will change the all-too-rancorous way that Washington does business. This proposal is based on one previously supported by Sens. Edward Kennedy, Joseph Lieberman, John Kerry and many other Democrats. They would have ended the filibuster as to all matters.

The Senate’s minority leadership met my announcement with a range of responses. At one end, my colleagues complained that the debate over judges would take too much time. Regrettably, the minority is saying one thing but doing another. This year, they have forced the Senate to spend an unprecedented amount of hours, equivalent to two full days, just on the act of voting for the president’s judicial nominees, 91 percent of whom were unanimously confirmed. The time spent on unanimous votes on judges this year is up 1,670 percent over the average for President Clinton’s judicial nominees.

More substantively, the minority contended that the Senate could be spending time doing more valuable things for the nation’s economy. I am certain, however, that when the American people review the record of our legislative accomplishments this year, they will conclude that we did not slouch.

Moreover, I do not believe that the Senate’s stewardship of the third branch of government is the least of our duties as the minority suggests. On the contrary, the Senate’s stewardship of the independent judiciary is perhaps the Senate’s single most important task, since we do not share the responsibility with the House.

George Washington understood this. He believed the judiciary was the most important of the three branches because the courts would protect our liberties. But America’s courts do more than that. Our independent judiciary provides the anchor for America’s economic strength. The stability and confidence that our courts provide make America the safest location for foreign investment and commerce — that means more jobs and greater prosperity.

Our courts, to the extent that they are free of results-oriented politics and other corruption, are one of the foundation stones that have allowed America’s history to unfold differently than our sister republics to the south.

We will debate three nominees that the American Bar Association considers qualified to serve on the appellate court but who a Democrat minority considers out of the American mainstream. They will have to explain how Justice Owen, who was elected to the Texas Supreme Court by 83 percent of Texas voters, is out of the mainstream. They will have to explain how Justice Brown, retained to serve by 76 percent of California voters is out of the mainstream. They will have to explain why Judge Kuhl, who has the support of more than 100 California judges across the political spectrum, cannot serve on the worrisome 9th Circuit Court that declared the Pledge of Allegiance unconstitutional.

Over the past year, a Senate minority has used the filibuster for the first time in history to deny a bipartisan majority of senators their right to vote on judicial nominees. While majorities have delayed judges in the past, through the majority’s delegation to the Judiciary Committee, votes on judges have never before been blocked by a minority.

Of course, the debate is more than about mere Senate procedure. The minority is amending the people’s Constitution without the people’s assent. The reason for this is now well-known. Senate liberals have sought, with increasing intensity, to politicize not just the confirmation process but the courts themselves.

In pursuing this course, liberal Democrats are threatening the legitimacy of America’s courts. That legitimacy comes from much more than black robes and a high bench. It comes from the people’s belief that judges will apply the law or the Constitution without regard to personal politics.

Rather than seeking to determine the judiciousness of a nominee and whether a nominee will be able to rule without bias, liberal Democrats are out to guarantee that our judges are, in fact, biased against some and in favor of others. In the America that would result, citizens will have to worry about the personal politics of the judge to whom they come for justice.

The result of this all-hours debate will be that many more Americans will understand that an abuse of the Constitution is being waged by a partisan minority and their short-sided special interest groups in denying fairness to qualified judicial nominees. In the end, let’s remember that all Republicans are asking for is a fair, honest up or down vote as the framers of our Constitution envisions.

Sen. Bill Frist of Tennessee is the Senate majority leader.

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