Judicial Confirmation Filibusters: Playing by The Rules

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I think the essence of the judicial confirmation battle has been lost in all the rhetoric. This is about politics, and governing the Republic, and playing by the rules that make up that Republic. We are, after all, a nation ruled by the law, not by men. Stripped to its bare essentials, the idea of America is that we all have a chance to decide on what the rules will be and how they will be applied. In short, it's called politics.

Too many on both sides of the judicial confirmation filibuster issue are claiming that one side or the other is involved in a dastardly attempt to win by illegitimate means. To hear the Democrats, one would think the Republicans are attempting to corrupt the Constitution and send streams of brownshirts into the streets to terrorize decent citizens. (And no, I am not exaggerating by much. Just read up on Senator Byrd's recent bloviations or Senator Boxer's embarrassing screeches.)

Republicans have been less guilty of overheated rhetoric, but some (Tom DeLay comes to mind) have made it sound like godless Democrat judges are conspiring to ruin the country. (I do think they are ruining the country, but not maliciously.)

We have a way to settle these debates: It's called convincing people through the political process. The different approaches the Democrats and Republicans have taken to that process say a lot about each party. Democrats are hiding behind the filibuster because they know they will lose, and they are resorting to over-the-top, disingenuous rhetoric to justify their cowardice. Republicans simply want a vote on the nominees. (That's because the Republicans know they'll win, but that's politics, folks-- you get enough people to vote for you, and you can accomplish a lot of things!)

In that regard, Mort Kondracke, Executive Editor of Roll Call, has written a terrific piece, which you'll find here. It's the fairest, most realistic analysis of the judicial nomination filibuster issue I have seen yet. (Thanks to ConfirmThem for the link.)

Kondracke notes that while everyone is talking about legislative tricks, "what's amazing about this whole process is that so little attention has been paid to the nominees themselves."

Think about that. How much do you really know about the judges President Bush has nominated? Probably more than the average person, since blog readers tend to follow public affairs closely. But we have not seen much about the judges' individual qualifications, or their supposed sins and shortcomings. The Jonathan Turley op-ed linked below is the only recent summary I have seen in the MSM.

So what's at work here? Kondracke nails the answer:

In the case of Bush's nominees, Democrats have scarcely tried to mount a campaign on the merits. The quick, now-routine resort to the filibuster suggests that Democrats don't think they can muster convincing, substantive arguments that the nominees are extreme.

In other words, rather than try to win the debate out in the open, the Democrats are resorting to procedural maneuvers -- the filibuster-- in order to avoid having a real debate at all. In considering the "nuclear option," the Republicans are responding with a procedural maneuver of their own. Kondracke again:

Technically, the "nuclear option" is parliamentary sleight of hand - substitution of a majority vote on a ruling from the chair to effect a rules change that would normally require a two-thirds vote.

But which is worse: altering Senate rules by parliamentary maneuver, or inducing the Senate (by filibuster) to abandon its constitutional duty to "advise and consent" on presidential nominations?

The filibuster is a Senate tradition, not a constitutional mandate. The Constitution provides that each Congressional chamber should write its own rules. It doesn't say what they should be or how they should be established.

No one is trying to steal or corrupt anything. Both sides are just playing by the procedural rules. Maddening as that process can be, it's what we have to work with.

So why don't we just have a debate on the judges? It would certainly not be uncharted territory for the Democrats. Remember Robert Bork in 1987 and Clarence Thomas in 1991? As Kondracke recalls, "The process wasn't pretty. The nominees were misrepresented as throwbacks to the era of Jim Crow and back-alley abortions. But arguably, character assassination is preferable to systematic vaporizing of Senate procedures."

The Republicans are on the right side of this one. They want the Democrats to put up or shut up. If any of these nominees are so bad they should not be confirmed, then Senator Schumer and his colleagues on the Democrat side of the aisle should be able to shame a few Republicans into voting no-- like they did against Bork in 1987-- and defeat those judges' nominations. That they are unwilling to make that attempt speaks volumes about the true weakness of their position. So if the Senate rules need to be changed to force the Democrats out of hiding, then so be it.

SOCAL BLOGGERS' ALLIANCE UPDATE: Sheep's Crib has all our posts linked here.