Tuesday, June 2, 2009

Opponents of the Supreme Court nomination of Judge Sonia Sotomayor can take heart. Conservative leaders have found a constructive way to talk about a potential filibuster that’s fully in accordance with Senate tradition. It’s an approach worth considering if Senate Democrats try to ram through the nomination without adequate debate.

More than 120 conservative leaders outlined their idea in a letter to be delivered today to all Republican senators. The effort was organized by Manuel Miranda of the Third Branch Conference, an umbrella group concerned about judicial nominations. The high-toned letter, obtained in advance by The Washington Times, calls for a “great debate” on the nomination — not just within the Senate Judiciary Committee, but by the full Senate — for the public’s benefit.

The point, the letter says in so many words, is not personal destruction, but edification. The goal is to explain “the consequences of the two distinct judicial approaches to the Constitution, to our national character and to the lives of our children.” It is an “extraordinary educable moment that a Supreme Court confirmation process represents.” The public should beware “judicial nominees who will allow personal feeling and personal background to color their judgment with empathy for particular classes of litigants.”

The key, and welcome, contribution of the letter is to distinguish between a “Democratic filibuster” and a “traditional filibuster.” The former, a derailment of American tradition, uses a minority of the Senate to kill a federal court nomination. Mr. Miranda explains that the latter, with a rich and honorable history, is “intended to allow Senators sufficient time to inform themselves and to debate a matter before bringing something to a final vote.”

In other words, if Senate Democrats try to cram the nomination down Republican throats, conservatives and moderates of both parties should tell the Democratic leaders to cool it. A lifetime appointment to the highest court in the land merits calm deliberation, not hurried and harried political power plays.

The traditional filibuster would extend debate for a while but with the full expectation of allowing a “final vote” rather than stifling votes as the Democrats first did to Republican appeals court nominee Miguel Estrada in 2003. (Times editorial writer Quin Hillyer was the first in print to broach this traditional sort of filibuster in a May 29 column in the American Spectator.) Unlike Democratic filibusters, the traditional filibuster does not permanently undermine a president’s prerogative to appoint well-qualified people to the bench.

There is much in Judge Sotomayor’s record, on matters of race, property rights and gun rights, to give pause to any thoughtful person. That’s why the Senate would be justified, if needed, in pausing before a final vote.

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