- The Washington Times - Tuesday, May 3, 2005

For decades now, members of both political parties in the Senate have used procedural tactics to prevent up-or-down votes on high-level judicial nominations made by presidents of the opposition party. Who says? Republican Senate Majority Leader Bill Frist said so.

In his April 28 “Dear Harry” letter to Minority Leader Harry Reid, Mr. Frist acknowledged that “it has become clear to me that both parties have significant complaints about the process by which the Senate exercises its responsibility to advise and consent” on judicial nominees. He candidly noted that Democrats have complained that “some of President Clinton’s nominees were blocked in committee.” Now, Democrats “rely on that foundation to justify the filibusters” against President Bush’s appellate-court nominees, the majority leader said. “The cycle of recriminations and partisanship it exacerbates must stop,” Mr. Frist said, adding: “Reform of the confirmation process is badly needed, and it must take account of issues raised by each party.”

To that end, Mr. Frist offered a two-stage reform plan for circuit court and Supreme Court nominations. First, no longer could the Judiciary Committee bottle up nominations. Second, he proposed “establishing a procedure by which every Supreme Court and circuit-court nomination can be debated for up to 100 hours” on the Senate floor and then “receive an up-or-down vote.”

Mr. Frist rightly argued that these reforms “will serve the Senate well, regardless of which party is in the majority and regardless of which party controls the White House.” In effect, for high-level judicial nominations, he has offered what Democrats repeatedly demanded when they objected to Republican tactics under President Clinton.

In light of the disdain with which Democrats greeted Mr. Frist’s offer, it is worth recalling what they previously said on the Senate floor:

• On June 9, 2001, one month after President Bush issued his first set of circuit-court nominations and four days after Democrats officially gained majority-party status in the Senate, then-Senate Majority Whip Harry Reid said: “I think we should have up-or-down votes in the committee and on the floor.”

• On Sept. 14, 2000, Sen. Tom Harkin said: “Governor [George W.} Bush had the right idea. He said the candidate should get an up-or-down vote within 60 days of their nomination.”

• On Oct. 3, 2000, Sen. Patrick Leahy, the ranking member of the Judiciary Committee, cited “one very significant issue” on which he and then-Gov. Bush agreed. “We are paid to vote either yes or no — not vote maybe. When we hold a nominee up by not allowing them a vote and not taking any action one way or the other, we are not only voting maybe, but we are doing a terrible disservice to the man or woman to whom we do this.”

• On Oct. 5, 1999, then-Senate Minority Leader Tom Daschle said: “An up or down vote, that is all we ask for [circuit-court nominees] Berzon and Paez… . I find it simply baffling that a senator would vote against even voting on a judicial nomination.” On March 8, 2000, the day before the Senate would finally elevate U.S. District Court Judge Richard Paez to the 9th U.S. Circuit Court of Appeals, Sen. Russ Feingold said: “All Judge Paez has ever asked for was this opportunity: an up-or-down vote on his confirmation. Yet for years the Senate has denied him that simple courtesy.”

• On Sept. 16, 1999, Sen. Dianne Feinstein said: “A nominee is entitled to a vote. Vote them up; vote them down.” The next month, she declared, “Our institutional integrity requires an up-or-down vote.”

• On Sept. 28, 1998, Sen. Dick Durbin stated: “I am not suggesting that we would give our consent to all of these nominees. I am basically saying that this process should come to a close. The Senate should vote.”

• On Jan. 28, 1998, Sen. Barbara Boxer said: “[W]hether the delays are on the Republican side or the Democratic side, let these names come up, let us have debate, let us vote.”

• On Dec. 15, 1997, Sen. Paul Sarbanes said: “If the majority of the Senate opposes a judicial nominee enough to derail a nomination by an up-or-down vote, then at least the process has been served.”

If Democratic senators insist on perpetuating “the cycle of recriminations” by rejecting Mr. Frist’s fair-minded, long-term proposal to end the politicization of high-level judicial nominations, then they will prove that their earlier arguments for up-or-down votes were nothing more than self-serving demands unrelated to ending this decades-old problem.

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