Judicial Confirmation Filibustering: The Long And The Short of It
Hugh Hewitt, a tireless filibuster-fighter, pretty much sums up what the fight is all about. Dissecting a Washington Post article that appeared today, Hugh notes:
The article correctly reports that "the filibuster allows a minority in the Senate to block almost any legislation as long as it can muster at least 40
votes. It is considered one of the great institutional checks on the influence
of the majority party and sometimes the presidency," but fails to note
--anywhere in the article-- that prior to 2003 the filibuster
was never used against an appellate court nominee, and only once against a
Supreme Court nominee and in that instance, the 1968 nomination of Associate
Supreme Court Justice Abe Fortas to become Chief Justice, the filibuster was
backed by members of both parties.
That's point number one: What the Democrats are doing now is unprecedented. Moreover, if they are succesful, it will mean that 60 Senate votes are now required to ensure a judge's confirmation, regardless of party. The Republicans will respond the same way when they are in the minority again, so judicial nominations have already been changed forever. And it was the Democrats who made the decision to use the filibuster in this way.
Point number two: What is being proposed is a simple change in the Senate rules. It's all politics and government in action. No one on the GOP side is trying to monkey around with the Constitution.
Consider: The president is elected by all the people and appoints judges with the "advice and consent of the Senate." The Senate, in its Constitutional role, must therefore consent before a judge can take his or her seat on the bench. The Senate also establishes its own rules for voting on matters that come before it. The Democrats are using those rules, which allow for filibusters, to block certain Bush nominees. The so-called "Consitutional option" is a recognized parliamentary maneuver by which the GOP would seek a ruling from the chair that would interpret Senate rules to mean that filibusters are inappropriate in the consideration of judicial nominees.
That's it. The Constitution is not in danger. Ted Kennedy and Chuck Schumer, who are braying that something terrible is happening, are simply behaving like the south end of a horse headed north and should simply shut up. But they won't, which is why the Constitutional option should be exercised.
Confirm Them continues to be the best spot around to keep up with this issue.
There's some more Hedgehog blogging on this subject here, here, here, here, here, here, here, here, and here.
MORE: Hugh posts about an extremely informative debate he hosted on his show about Janice Rogers Brown, the California Supreme Court justice whom the Democrats are blocking. Go to Radioblogger.com for the transcript entitled "So Who Is Janice Rogers Brown Anyway?" I of course am biased, but I can't see that Erwin Chemerinsky has a leg to stand on, although he gets credit for a valiant effort in a losing cause.
FINALLY (I promise): Here's the president's statement on Priscilla Owen, which I think serves notice that the battle will soon be joined:
For Immediate Release Office of the Press Secretary May 9, 2005
President's Statement on Judicial Nominations
Four years ago today, I nominated Justice Priscilla Owen and Judge Terry
Boyle to serve on the Federal courts of appeals. Four years later, neither has
received an up-or-down vote in the Senate. Both have been rated well-qualified
by the American Bar Association, the highest ABA rating a judicial nominee can
receive. Both have been waiting to fill vacancies that have been designated
judicial emergencies by the Judicial Conference of the United States. Much more
than enough time has passed for the Senate to consider these nominations. The Senate should give these extraordinarily qualified nominees the up-or-down votes they deserve without further delay.
It is only fair that the Senate promptly consider judicial nominees on the floor, discuss and debate their qualifications, and then vote to confirm or not to confirm them. Nominees who have the support of a majority of the Senate should be confirmed. Unfortunately, a minority of Senators is blocking the will of the Senate.
Over the course of the past four years, the blocking of judicial nominees in the Senate has escalated to an unprecedented level. Last Congress, ten of my appeals court nominees were filibustered. Each of these highly qualified nominees enjoyed the bipartisan support of a majority of Senators. Each would have been confirmed if given a simple up-or-down vote. Each deserved a simple up-or-down vote by the entire Senate.
I urge the Senate to put aside the partisan practices of the past and work together to ensure that all nominees are treated fairly and that all Americans receive timely justice in our Federal courts.