Politicizing the Judiciary

Article excerpt

Byline: The Register-Guard

President Bush's recess appointment of Charles Pickering to a federal appeals court seat last week escalates the partisan battle in the U.S. Senate over judicial confirmations. The escalation comes in response to earlier escalations by Senate Democrats, who have used the filibuster to block six controversial nominees. A process that has acted to provide the nation with a centrist and independent judiciary is unraveling.

Democrats reject the charge of having obstructed the confirmation of Bush's nominees, and they make a good point. Only six of Bush's 175 nominees have been stalled by the Democrats - a confirmation rate of nearly 97 percent. During his first two years in office, President Clinton saw only 90 percent of his nominees confirmed. Other modern presidents' early-term confirmation rates are more in line with Bush's than with Clinton's, including Ronald Reagan's (98 percent), Jimmy Carter's (93 percent), Lyndon Johnson's (97 percent) and John F. Kennedy's (99 percent).

In each of these cases, the Senate was under the control of the president's own party. But even Republican presidents who had a Democratic-led Senate during their first two years in office saw most of their judicial nominations confirmed - the first President Bush (93 percent), Gerald Ford (87 percent) and Richard Nixon (93 percent).

Yet Senate Democrats' filibusters against judicial nominees are unprecedented. Since the Senate adopted its filibuster rules in 1949, Bush's predecessors had 2,370 judicial nominations undergo Senate review without a filibuster.

The filibuster is a parliamentary tool for delaying a vote on a bill or a motion by talking it to death. It's a powerful tool in the hands of a legislative minority, because it takes 60 Senate votes to end debate by invoking cloture. As long as most or all of the Senate's 49 Democrats stick together, they can beat a cloture vote and delay action on a judicial nomination indefinitely. The Democrats have defeated cloture on judicial nominations 16 times.

The Democrats' stalling has infuriated Senate Republicans, who correctly claim that they never filibustered judicial nominations despite having spent most of the past half-century in the minority. Yet even when Democrats were in control, Republicans could generally count on peeling off a few Democratic votes on controversial issues, including judicial nominations. …