Sen. Hypocrite (D)

OpinionJournal - Outside the Box

Sen. Strangelove
Or: How Democrats stopped winning and learned to love the filibuster.

BY PETE DU PONT

Sen. Barbara Boxer is a longtime opponent of judicial nomination filibusters. Or she was. Suddenly the light has dawned, and she realizes how wrong she was to oppose them: "I thought I knew everything. I didn't get it. . . . I am here to say I was totally wrong."

Other Democratic senators have had similar changes in belief: Joe Biden and Robert Byrd, Tom Harkin, Ted Kennedy, Joe Lieberman, Pat Leahy, Chuck Schumer and their erstwhile colleagues Lloyd Bentsen, and Tom Daschle have all vigorously opposed the use of the filibuster against judicial nominations. Mr. Schumer was for voting judicial nominations "up or down" without delay. Mr. Leahy flatly opposed a filibuster against Clarence Thomas's Supreme Court nomination: "The president and the nominee and all Americans deserve an up-or-down vote." Mr. Harkin believed "the filibuster rules are unconstitutional," Mr. Daschle declared that "democracy means majority rule, not minority gridlock," and Mr. Kennedy that "senators who believe in fairness will not let the minority of the Senate deny [the nominee] his vote by the entire Senate."

But that was then, when Democrats controlled the Senate. Now, they are a frustrated minority and it is different. Mr. Leahy has voted against cloture to end filibusters 21 out of 26 times; Mr. Kennedy, 18 out of 23. Now all these Senators practice and defend the use of filibusters against judicial nominees.

This fundamental change in deeply held liberal beliefs has made a difference. Sen. Orrin Hatch notes that in the 108th Congress (2003-04) the Senate "voted on motions to end debate on judicial nominations 20 times. Each vote failed." Of the 51 judicial nominees President Bush has put forward for the circuit courts of appeals, 35 have been confirmed, 10 have been "debated" without conclusion--filibustered--and six were threatened with a filibuster so no action has been taken on their nomination. Mr. Bush nominated Justice Priscilla Owen of the Texas Supreme Court for the Fifth U.S. Circuit Court of Appeals almost four years ago. She has the highest possible rating from the American Bar Association but has been filibustered four times by a Senate minority that once devoutly believed filibustering was morally wrong and clearly unconstitutional.

So what of this supermajority rule requiring a three-fifths vote to end judicial confirmation "debate" in the Senate and force a vote? Why is it here, where did it come from, and should it be part of the Senate rules?

This rule is not a constitutional requirement. The Constitution requires a two-thirds vote to override a presidential veto, pass a constitutional amendment, approve treaties or expel a member of Congress. But all it says about judges is that they are appointed by the president with "the Advice and Consent of the Senate." Absent a constitutional requirement for a supermajority, a majority vote is sufficient. The U.S. Supreme Court affirmed that principle in 1892.

When the Senate first established its rules in 1789, there was no such thing as a filibuster. A simple majority could move the previous question and vote on the matter before it. That was reversed in 1806 and the rules required unanimous consent to end debate; one senator could filibuster anything. In 1917 President Wilson, frustrated by a dozen Senators filibustering a wartime defense bill, observed that "the Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action." He successfully pressed the Senate to adopt Rule XXII, requiring only two-thirds instead of all senators to end debate on a pending statute. In 1975 that rule was amended to reduce the number to three-fifths, or 60 Senators.

The filibuster has historically been used to block the passage of substantive measures--such as the antilynching bills of the 1930s, and the direct election of the president in the 1970s. And they will be used in the future--Sen. Schumer said on Monday that he would filibuster the energy bill because it is too kind to Big Oil. A filibuster is also likely to stop personally owned Social Security accounts if such legislation reaches the Senate floor.

Current Senate rules prevent filibusters of some substantive matters--among them budget resolutions, trade agreements and the use of military force to protect America. But they do not limit the filibustering of judicial nominees. Some argue for abolishing the filibuster altogether, so that every legislative proposal reaching the Senate floor should be voted up or down and an angry minority would never be able to stop votes from occurring. The New Yorker's Hendrik Hertzberg says that the filibuster should not be elevated "into a moral principle"--that if the Republicans get rid if it for judicial nominations the Democrats should "get rid of it for everything else too." But Senate Majority Leader Bill Frist's proposal is not about that question. It is about eliminating the filibuster only for considering judicial nominations.

Should the 60 votes required to end a judicial nominee's filibuster be done away with by adopting a nonfilibuster rule for judicial confirmations? It was branded a "nuclear option" by Sen. Trent Lott, a phrase media critics and Democratics have embraced, but it is in fact a sensible choice. In America's representative democracy there is a constitutional intention that majority congressional votes be determinative on all but a very few enumerated matters. Confirming presidential judicial nominations is not one of them.

So when Mr. Frist offers his rule change in the next week or so, the Senate should pass it. Ms. Boxer may not vote for it, but five will get you 10 that if the Democrats one day regain control of the Senate, it will take her less than 20 seconds to decide that she had been totally wrong a second time--that judicial filibusters now should never be allowed.