Let Them Filibuster: A Senate rules change may not be wise.

National Review Online ^ | December 15, 2004 | The Editors

[xsysmgr]

Democrats have waged an "unprecedented" campaign against Bush's judicial nominees — to quote an accurate observation that Democratic senator Jon Corzine made in a fundraising letter. They have denied up-or-down votes to several Bush nominees who had the support of a majority of senators. They have made scurrilous charges against nominees. Priscilla Owen was said to be an enemy of women because, as a judge in Texas, she had interpreted a state law to grant parents a stronger right to be notified of their children's abortions than Democrats would like. Democrats sought to breach the confidentiality of Miguel Estrada's work for the Justice Department in a desperate search for embarrassing material on him. The effect of the Democratic campaign, and probably the intent, has been to intimidate some qualified conservative jurists from putting themselves in the line of fire.

So we sympathize with those Republicans who have been proposing to change the Senate rules to make it easier to confirm nominees who have majority support. Nevertheless, we think the idea is a mistake.

Under current Senate procedures, it takes 60 votes to end a debate and move to a vote. It takes 67 votes to change the procedures. Some conservatives argue that the 60-vote rule to cut off debate, when applied to judicial nominations, violates the Constitution. The "advice and consent" of the Senate, they say, implies that it should only take a majority of the Senate to confirm a judge. The use of the filibuster effectively creates a supermajority requirement, which, on this argument, is unconstitutional. It is, in our view, an implausible argument. The Constitution does not forbid the Senate from setting its own procedures.

Republicans should insist on
political accountability for filibusters
instead of a rules change.

Conservatives are on stronger ground in arguing that a simple majority of senators should be able to rewrite the rules. But whether it would be prudent for Republicans to act on this insight is another question.

It may be wiser to insist on political accountability for filibusters of judicial nominees than to change the rules to prevent them. In the 2002 and 2004 elections, Republicans took Senate seats from the Democrats. The Democrats' filibusters against Bush's judge picks were an issue in all of them.

The consequences might be worse for the Democrats in the case of a Supreme Court vacancy. Only small portions of the electorate have paid attention to the political battles over appellate-court nominations. The public will be paying attention during a Supreme Court fight. Many voters will root for Bush's nominee and many will root against. But it is unlikely that middle-of-the-road voters will have much tolerance for attempts to block a vote.

Consider the Ashcroft precedent. Liberals were incensed over Bush's nomination of John Ashcroft to be attorney general. They were energized by their strong showing in the 2000 Senate elections and angered by the Florida recount. They demanded a filibuster of Ashcroft. The Democratic Senate leadership refused to take this step, rightly calculating that the public reaction would be negative.

The Democrats will probably not be able to resist the liberal pressure to wage a filibuster when a Supreme Court vacancy arises. But at some point, we strongly suspect that the filibuster would collapse. That collapse would do more for Republicans — and for the cause of confirming conservative judges — than a rules change. (A rules change might demoralize Democrats, but it would also enrage them. An unsuccessful filibuster would just be demoralizing.)

Republicans could change the rules, but they have no constitutional obligation to do so. And the best moment for changing the rules, during a Supreme Court fight, would also be the moment when a change would be least necessary. So let the Democrats filibuster — and pay the price.

[holdonnow]

Wrong. Change the rule. They're usurping the Constitution. If course the Senate gets to make its own rules, but those rules cannot change the Constitution. There are 7 instances in which the Constitution provides for a super-majority, and judicial confirmations is not one of them.

[jveritas]

If we can change the filibuster rules and prevent filibuster let us do it instead of making all this grand standing "Let them Filibuster".

[ScottM1968]

Why not make the filibusters "real"? Keep people there around the clock straight. Make both sides suffer the Democrat's stupidity.

Frist has no "manhood" left.

[TruthShallSetYouFree]

But at some point, we strongly suspect that the filibuster would collapse.

I disagree. If the left believes that a conservative supreme court appointee might negatively impact their beloved Roe v. Wade baby-killing machine, they will filibuster forever.

[paudio]

But at some point, we strongly suspect that the filibuster would collapse.

When? When the Dems get the power again?

[TomGuy]

Frist should have ruled the filibuster out of order and proceeded as usual.

Yes, the Dems would have cried and moaned, but so what.

Now, Frist has allowed precedent to be set, if he doesn't do something before the next session begins.

[The Ghost of FReepers Past]

What I want is revenge. Next time they have the power to nominate, may we filibuster 'em all -- every last one.

[mvpel]

It is, in our view, an implausible argument. The Constitution does not forbid the Senate from setting its own procedures.

So the Senate can say that "consent" means a supermajority, instead of a simple majority? Give me a break.

[anniegetyourgun]

You are so right....this is not your father's Dem party. The NRO editors are assuming the D's will act in their own interests. Tell me, when have we seen that in the last 6 years? Heck, I'm waiting for them to put Dr. Screamin' Dean in charge over at the DNC....because, it would be in their best interest, of course!

[holdonnow]

The "nuclear option" was already unleashed, by the Democrats. It's time to respond with the constitutional option, which changes the Senate rule and stops them from imposing a super-majority vote for judicial confirmations.

[flashbunny]

National review demonstrates the method utilized by republicans for years to fritter away whatever power they gain.

First rule of political power: If you have it, USE IT!

[double_down]

If the dems regain the senate and we elect a dem president, they would change this rule in the first day of the new session. Why wait? While the dems may be unsuccessful in filibustering a SCOTUS nominee, they will continue to filibuster the appellate court nominees. Many cases never make it to the SCOTUS and are decided at the circuit court level. We need to fill these courts with conservatives and the only way to accomplish this is to go nuclear. Do it now and approve the likes of Owen, Rogers-Brown, Saad, etc. If not, we will look back in 2008 and wonder why Bush left 30 open positions on the circuit court of appeals.

[Lunkhead_01]

Actually, it doesn't take 60 votes to break a fillibuster. It only takes 3/5 of those present and voting. So the "simple" way to break a fillibuster is to keep the Senate in session all night. Let as many of the Republicans sleep in their offices as you need. As soon as the number of Democrats in the chamber drops sufficiently, that is, about 15 of them go home, call all the Republicans back for an immediate cloture vote.

[Tatze]

Exactly. Dont change the rule, dont let them filibuster. Make them filibuster, 24/7 around the clock. No more of this weak-assed filibuster where they just say they are filibustering and the GOP backs down. Bring in the cots and force their hand.

[Mike1973]

They should make the democrats stand at the podium and speak for as long as they can, and go through the entire list of Democrats.

The Republicans should force the Democrats to conduct the filibuster just it was done in the old days.

[Gorjus]

Why not make the filibusters "real"? Keep people there around the clock straight.

The best option.

Getting rid of the filibuster option is bad, and if you give it up on this issue, it's gone on all issues.

I remember when Clinton had majorities in both houses of Congress. But he never had more than 60 Senators. Just imagine what sort of Supreme Court we'd have had if all he needed was a simple majority.

Doesn't anyone else remember Lani Guiniere? Do you think Hillary would be any less prone to ramming through some ultra-liberal Justice nominations if she had 50 votes (plus a VP to break the tie)? Remember, it was Gore's tie-breaking vote that gave us the largest tax increase in history.

I'm all for impediments to effective action - when the alternative is greasing the skids for horrific actions the next time the wheel turns.

[mrsmith]

.

If filibusters are such a good idea why did the first Senates forbid them?

.

[Guyin4Os]

>>> Wrong. Change the rule. <<<

If the Republicans can't muster 60 votes to get cloture, how are they going to get 67 votes to change the rules?

[TruthShallSetYouFree]

What I want is revenge. Next time they have the power to nominate, may we filibuster 'em all -- every last one.

That would be a Pyrrhic victory. I hope I don't live to see the dems back in the White House.