- The Washington Times - Saturday, February 19, 2005

How many times must President Bush successfully appeal to American voters to elect a Senate that will resume the post-World War II American political tradition of granting an up-or-down vote to a president’s judicial nominees who enjoy majority support in that body? Despite voters’ positive responses to the appeals by Mr. Bush during the 2002 campaign, when Republicans recaptured control of the Senate, and the 2004 election, when voters increased the GOP Senate majority from 51 to 55, Democratic senators have given every indication they will continue to wage an unprecedented, systematic filibuster campaign to deny up-or-down votes for appellate-court nominees who would be easily confirmed by majority votes.

In 2002, Mr. Bush traveled across the nation campaigning against Democratic judicial obstructionism. The delaying tactics prevented votes for several appellate nominees, including U.S. District Judge Terrence Boyle, Texas Supreme Court Justice Priscilla Owen and Miguel Estrada, all of whom were nominated in May 2001, less than a month before Democrats regained majority status after Sen. James Jeffords left the GOP. Voters responded in 2002 by re-installing a Republican majority, which would prevent Democrats from bottling up nominees in committee or failing to schedule a floor vote.

In 2003, Mr. Bush renominated Messrs. Boyle and Estrada, Justice Owen and other appellate nominees who had been denied a floor vote by the Democratic-controlled Senate during the 107th Congress. Having lost their majority in 2002, Democrats then resorted to extraordinary tactics during the 108th Congress (2003-04). In an unprecedented obstructionist campaign orchestrated by then-Senate Minority Leader Tom Daschle and enforced by his whip, Harry Reid, Democrats repeatedly engaged in filibusters to prevent the Senate from conducting up-or-down votes for appellate-court nominees, all of whom would clearly be confirmed by a majority of senators. For Mr. Estrada alone, who would have been the first Hispanic appointed to the D.C. Circuit Court of Appeals, Democrats voted seven times in 2003 to deny cloture, which would have ended their filibusters and led to an up-or-down vote. Sixty votes are required to invoke cloture. For Justice Owen, Democrats thwarted four attempts to invoke cloture. And that is just the tip of the obstructionist iceberg.

The Democrats’ filibuster campaign has been exceptional in both scope and intensity. During the 108th Congress, for example, the president submitted to the Senate 34 nominees for the appellate courts. Despite a Republican majority in the Senate, where only a simple majority vote is required for judicial confirmation, Democrats managed to thwart the confirmation of 16 of those 34 nominees. Against 10 of the nominees, Democrats waged their filibuster campaign, denying them an up-or-down vote. Each of those 10 nominees would have been confirmed by a majority vote if Democrats had not filibustered. Twenty cloture votes involving the 10 appellate nominees were held during the 108th Congress, and Democrats successfully prevented the invocation of cloture each time.

Until 1949, cloture could not be invoked on nominations. Thus, before 1949, nominations could be — and occasionally were — talked to death by a filibuster. From 1949 through 2000, however, cloture was sought on only 13 judicial nominations, 12 of whom were eventually confirmed. (Only Associate Supreme Court Justice Abe Fortas, whose 1968 nomination to be chief justice was briefly subjected to a bipartisan filibuster before it was withdrawn after a single cloture vote, failed to be confirmed. And with 19 Democratic senators voting against cloture, there is no evidence that Fortas would have received majority support in the Senate on an up-or-down vote.)

Throughout the 2004 election year, Mr. Bush responded to the Democrats’ filibustering campaign by appealing to voters to increase the Senate’s Republican majority and to defeat Mr. Daschle, whom the president rightly accused of obstructionism. Mr. Daschle lost, and the GOP majority increased by four members.

On the heels of Mr. Bush’s own re-election, which he won by 3 million votes in a campaign where the future of the nation’s federal courts was a central issue, the president has resubmitted the names of 12 circuit-court nominees, seven of whom were filibustered during the last Congress and five of whom were otherwise delayed by Democratic obstructionist tactics. Seemingly, however, the electoral price paid by Mr. Daschle has made little impression on the vast majority of Democratic senators, who need to muster 41 of their 45-member caucus (including the ostensibly independent Mr. Jeffords) to continue their unprecedented, systematic campaign of obstruction against circuit-court nominations.

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