Sunday, May 22, 2005

As the Senate nears a showdown over the issue of giving all judicial nominees an up-or-down vote, now is a good time to clear up some misconceptions about what’s really at stake here.

The liberal advocacy group, People for the American Way, has run ads saying Senate Majority Leader Bill Frist wants to abolish the filibuster, a time-honored parliamentary tactic to kill a bill by refusing to end debate and thus forestalling a vote forever. Mr. Frist’s proposal wouldn’t do that.

There are good reasons for the filibuster rule in most cases, because it prevents the majority from trampling the rights of the minority to subject each issue to a full airing and examination of the arguments, both pro and con. It has been abused from time to time, but the rule has also provided important checks and balances against the passage of very bad laws and sometimes has encouraged a search for compromise.

But Mr. Frist’s proposal would not touch the filibuster as it applies to any bill or other nonjudicial nominations that may be brought before the Senate now or in the future. It would halt abuse of the Senate’s “advice and consent” responsibility over judges by restoring the tradition of giving each president the right to an up-or-down vote on his court appointments. Filibustering bad laws or programs is one thing, but preventing a vote on the judges who enforce our laws that keep our country safe and free is quite another.

For most of our history, the Senate has fulfilled its responsibility by submitting each nominee to a simple majority vote. But recently the Democrats, who are having a hard time adjusting to life in the minority, raised the bar from a 51-vote simple majority to a 60-vote supermajority — a difficult obstacle to clear in a deeply divided chamber.

There is precedent for Mr. Frist’s proposal. The filibuster rule is forbidden in certain cases, such as budget resolution bills, on which the nation’s fiscal and economic security often depends.

Mr. Frist says judges fall into this category, too. There will still be ample opportunity to debate each judicial nominee in committee and on the floor of the Senate, possibly for weeks or months. But his proposal would ensure the minority cannot trample on the majority’s right to get a vote on the nominee.

Another misconception throughout the bitter four-year-plus debate over President Bush’s nominees is that most of his appointments have been confirmed, 205 to be exact, and only a small number held up.

But C. Boyden Gray, White House counsel in the first Bush administration, notes in a revealing analysis in Human Events that the nexus of the battle is over appeals court judges, where the Democrats’ opposition has been most effective.

Mr. Bush nominated 52 well-qualified people to the appellate courts in his first term. Thirty-five were confirmed, but 17 were not. Mr. Gray cites American Enterprise Institute scholar John Lott Jr. that the confirmation rate — 67 percent — is the lowest in modern times.

But how did President Clinton’s nominees fare under the Republican Senate? Democratic leaders say they are just doing what Republicans did to them in 1990s. In fact, “Clinton’s eight-year appellate confirmation rate was 74 percent, in addition to getting two liberals confirmed to the Supreme Court,” says Mr. Gray. Mr. Clinton got 377 judicial nominees confirmed. A pretty good record in a Republican-run Senate.

Another myth to dispel: It is simply not true nominations have been filibustered frequently. If the definition of a filibuster, the beginning of unlimited debate, is when cloture (a vote to limit debate) is approved, the Senate’s history shows that, with few exceptions, every nominee has been confirmed after cloture has been invoked.

Notably, no one in the Senate tried to filibuster Justice Clarence Thomas’ nomination, despite the intense debate that preceded his up-or-down vote to sit on the high court and the fact Republicans did not have 60 votes to end a filibuster.

So it is clear the filibuster’s use to block nominees from a fair up-or-down vote is new in U.S. history. “The Democrats’ filibuster is … a repudiation of a settled pre-constitutional understanding,” says liberal constitutional scholar Mark Tushnet.

Mr. Frist thinks this undermines our constitutional system of majority rule. No one under his rules change would be denied the right to challenge and oppose any nominee. But no one could prevent the senators’ right to vote on each nominee.

That’s the core issue before the Senate this week. And that is why Mr. Frist will win this historic constitutional battle.

Donald Lambro, chief political correspondent of The Washington Times, is a nationally syndicated columnist.

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