The pending Senate floor fight over judicial filibusters should concern everyone in America. A purely political maneuver by the Republican majority, this is nevertheless an affront to one hundred eighty years of Senate practice. All of us who care about precedent, about established rules of engagement, should voice objection to this clear attempt to move the goal post when it’s your turn to kick.
In 1825, the filibuster became a tool for objecting, slowing down the process and seeking compromise on issues or appointments of great importance. In modern history, Republicans used the filibuster against LBJ’s 1968 nominee for Chief Justice of the Supreme Court. Most recently, they used the tactic against two Clinton nominees for Circuit courts. Senator Bill Frist, now an avid opponent of the filibuster, actively supported one of these efforts, led by former New Hampshire Senator Bob Smith.
Used by the Democrats as well, this tactic is a very public confrontation between parties. There is a better way to avoid a fight. Simply do not allow the nominee ever to see the light of day. Republicans performed that maneuver, by never sending the nominee out of committee, sixty times during the Clinton administration. In comparison, the filibuster is a rare creature in the world of judicial appointments. Regardless of the method, about 20 percent of the Supreme Court nominees have been rejected since 1789.
Why are we facing this fight today? The Bush administration has had 208 of 218 nominees confirmed by an up or down vote. Only 10 of the first term appointments were opposed. (The seven now in question were renominated from this group.) That means over 95% of his offerings have been accepted, more than any of his three predecessors. Nevertheless, Sen. Bill Frist is prepared to overturn the long-standing practice of filibuster for this five percent?
The real game afoot is the upcoming fight over Supreme Court nominees. One or more vacancies will surely emerge in the next year or so. The Republicans want to dispense of the filibuster today when the stakes don’t seem so high, so they can sail their candidates through when the High Court is the prize. That will not be "Advice and Consent", but instead, a rubber stamp.
Last week, I approached the president and president-elect of the American Bar Association, wondering where this august body stands in the battle. Well, it stands on the sidelines. I was told there is no official (or unofficial) policy from the nation’s lawyers. It would take a majority vote of the House of Delegates, and they only meet twice a year. Sigh. This was not enough of a calamity to arouse their ire.
If I was witnessing an out-of-control minority in the Senate, refusing to accept any presidential nomination, I might feel differently. However, I am watching as a mere fraction of a president’s nominees is objected to through legitimate Senatorial procedures. Instead of questioning the validity or appropriateness of his choice, President Bush is prepared for his Senators to move the goal post to insure approval for his lower court nominees today, and more importantly, for his Supreme Court nominees in the near future.
Once again, this fight is not over Liberal vs. Conservative judges. A large majority of federal judges now serving were appointed by Republican administrations. This is a fight over ideological jurists who bring a very particular bent to the interpretation of our laws and Constitution that do not reflect the views of a majority of Americans. If the Senate can eliminate the filibuster today, there will be no method of tempering the appointments to come.
Please remember, the results are with us FOR LIFE.