April 18, 2005
Before Firing 'Nukes,' Senate Should Debate Bush's Judicial Picks
By Mort Kondracke

Before Senate Republicans and Democrats plunge into so-called "nuclear" conflict over President Bush's judicial nominations, why not try something traditional: extended debate?

Bush has sent up a batch of appeals court nominees. Democrats and their allies brand several of them "out of the mainstream" or "right wing" and threaten to filibuster them, as they did 10 nominations in the previous Congress.

In response, Republicans threaten to change Senate rules - by simple majority vote, not the two-thirds required - to prevent judicial filibusters and allow them to be approved by simple majorities, not three-fifths.

And in response, Democrats have vowed to "close down the Senate," delaying action on all measures not involving national security or "critical government services."

What's amazing about this whole process is that so little attention has been paid to the nominees themselves.

Democrats have proved over the years that they are perfectly capable of mounting public relations campaigns to block nominees they regard as unqualified and defeating them by majority vote. Think of Supreme Court nominees Robert Bork in 1987 and Clement Haynesworth in 1969.

The process wasn't pretty. The nominees were misrepresented as throwbacks to the era of Jim Crow and back-alley abortions. But arguably, character assassination is preferable to systematic vaporizing of Senate procedures.

In the case of Bush's nominees, Democrats have scarcely tried to mount a campaign on the merits. The quick, now-routine resort to the filibuster suggests that Democrats don't think they can muster convincing, substantive arguments that the nominees are extreme.

George Washington University Law professor Jonathan Turley, himself a liberal, thinks that good cases could be made against Texas Supreme Court Justice Priscilla Owen, District Judge Terrence Boyle and former Pentagon counsel William Haynes.

However, he says that most of Bush's other nominees, including California Supreme Court Justice Janice Rogers Brown and Alabama Attorney General William Pryor, while ideologically conservative, have demonstrated that they are principled jurists who put the law ahead of their beliefs.

If "nuclear war" befalls the Senate, the blame falls first on Democrats for abandoning normal procedure - full debate - and resorting to the filibuster to block Bush's nominations.

Republicans say that judicial filibusters are unprecedented in American history.Democrats respond that there have been several in the past, notably by Republicans in 1968 over the nomination of Abe Fortas to be chief justice. The dispute gets murky over whether this or that nominee was really filibustered, but this much is certainly true: It's unprecedented for any party to filibuster judicial nominations routinely.

In the previous Congress, Democrats could plausibly argue that breaking precedent was justified to prevent Bush from "packing the courts" when he was a "minority president" who took office only due to Supreme Court intervention. That justification was upended in 2004. Bush is now a majority president and deserves to have his judicial nominations given an up-or-down vote in the Senate. Democrats are obstructing that process.

So, are Republicans justified in changing the Senate rules to trump the Democrats? Technically, the "nuclear option" is parliamentary sleight of hand - substitution of a majority vote on a ruling from the chair to effect a rules change that would normally require a two-thirds vote.

But which is worse: altering Senate rules by parliamentary maneuver, or inducing the Senate (by filibuster) to abandon its constitutional duty to "advise and consent" on presidential nominations?

The filibuster is a Senate tradition, not a constitutional mandate. The Constitution provides that each Congressional chamber should write its own rules. It doesn't say what they should be or how they should be established.

The rules on filibusters have been changed several times in the past. In 1995, Democrats tried (and failed) to eliminate the filibuster entirely, with nine currently serving Senators voting for that proposition.

Democrats argue that if the Senate rules are changed with respect to judicial nominations, the chamber will come to resemble the House, where the majority rules ruthlessly, and the founders' design for the Senate to be the government's "cooling saucer" will be undermined.

The "nuclear option" would be a step toward strict majority rule, but it's up to the Senate itself whether it goes any further, and there seems no impulse so far to do so for legislation.

Of course, it's not clear that Majority Leader Bill Frist (Tenn.) has the 51 votes he needs to change the rules. Frist hasn't been helped by over-the-top condemnations of the federal judiciary by House Majority Leader Tom DeLay (R-Texas) and various right-wing activists. They've bolstered Democratic claims that the third branch of government is under systematic assault from the right.

At the same time, if Frist succeeds in changing the rules and Democrats "go nuclear" by halting Senate business, fallout will rain on them, as well. Shutting down the government is unlikely to be popular.

There is a way out of all this: Have real debate on each nominee. If they are really "extreme," as Democrats claim, let them prove it.

Mort Kondracke is the Executive Editor of Roll Call.

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