Byline: Ralph G. Neas, SPECIAL TO INSIGHT
The Senate Rules and Administration Committee recently approved on a voice vote, with no Democrats present, the proposal by Senate Majority Leader Bill Frist (R-Tenn.) effectively to eliminate the possibility of using a filibuster to block controversial judicial nominees. Some in his party, notably former Senate majority leader Trent Lott (R-Miss.), have urged a more radical move, a so-called "nuclear" option that would abandon rules of Senate procedure to try to force through a change in filibuster rules with a bare majority of the Senate.
Republican threats to put an end to long-established Senate practice, rules and precedents are extraordinary in light of the success that President George W. Bush already has had in making his mark on the federal judiciary. In the two years since Bush named his first nominees to the federal bench, the Senate has confirmed more than 120 Bush judges, including 100 who were confirmed with the Senate and its Judiciary Committee under Democratic control. Since Republicans regained control of the Senate, Democrats have used the filibuster a long-standing Senate procedure requiring a supermajority to cut off debate on important topics to block only two controversial appeals-court nominees, while a number of other nominees have been permitted a full floor vote in spite of intense opposition. Amidst the talk of crisis and a broken system, one important fact is being overlooked: There currently are only 47 vacancies in the federal judiciary, less than half of the 111 vacancies that existed when the Democrats took control of the Senate in July 2001 and the lowest vacancy rate in 13 years.
In spite of the rapid approval rate for Bush's judicial nominees, the fury of Republican leaders that even two nominees have been stopped by Democratic filibuster has led to a series of remarkable efforts unilaterally to change long-standing rules and to abrogate bipartisan agreements. Perhaps the most potentially far-reaching is the effort to declare the use of the filibuster to be unconstitutional when applied to judicial nominees.
The astonishing claim that the use of the filibuster is unconstitutional although it has been used by Republicans and Democrats alike for decades is a short-sighted strategy for undermining the Senate's traditional role as the more deliberative chamber of Congress and for removing one of the only checks on the abuse of power by the majority party with respect to the issue of judicial nominations.
It is a remarkable display of hypocrisy for Republican leaders, including senators such as Senate Judiciary Committee Chairman Orrin Hatch (R-Utah), to suggest that use of the filibuster to prevent final votes on judicial nominees is unconstitutional. The historical record is clear that both Republicans and Democrats have used the filibuster with respect to controversial judicial nominations. In defending a Republican-led filibuster on a judicial nomination in 1994, Hatch himself explained that the filibuster is "one of the few tools the minority has to protect itself and those the minority represents." Moreover, during the Clinton administration, Senate Republicans blocked dozens of Clinton nominees with much less open and accountable procedures such as "secret holds." Fully one-third of Bill Clinton's appeals-court nominees from 1995-2000 were kept off the bench many without even a hearing or committee vote while others were delayed for as long as four years.
How can it be constitutional for a committee chairman to stop a nominee by refusing to hold a hearing, or for a secret hold by a single Republican senator to prevent a nominee from moving forward, but unconstitutional for 41 Democratic senators to prevent a final vote using a public Senate procedure specifically designed to protect the rights of the minority? It is clear that the answer has nothing to do with the Constitution and everything to do with the politics of power at all costs. …