The Constitutional Truth About Filibusters - (historical fact makes liars out of Reid & Dems)

On the filibuster issue, the Democrats are anything but protectors of the Constitution. They are anything but principled defenders of time-honored constitutional values. Instead, they are simply following the only political strategy they seem to know - using deception and outright falsehoods to cast themselves as the oppressed, innocent victims of tyrannical Republicans.

Under the Democratic scenario, Republican efforts to end the filibustering of judicial nominees amounts to an unprovoked assault on the minority party. What this claim of victimhood ignores is that Democrats are the ones who started the war. For the past four years, they have been filibustering President Bush’s judicial nominees.

In 2001, for instance, Miguel Estrada was nominated for the United States Court of Appeals for the District of Columbia, but after two years and seven failed attempts to break the Democratic filibuster preventing any vote on his nomination, he finally gave up and withdrew his name from consideration.

Democrats complain that the Republican opposition to filibusters undermines their right to “advise and consent.” But there is ample evidence that from the very start of the Bush presidency, Democrats had no intention of fulfilling their constitutional duty to “advise and consent.”

Shortly after George W. Bush’s election in 2000, liberals vowed to block the nominations of any judge perceived as conservative. Writing in The American Prospect in February 2001, liberal scholar Bruce Ackerman urged the Senate to “refuse to confirm any nomination offered up by President Bush.” Thus, the conclusion is almost inescapable that the Democratic filibustering of judicial nominees is simply a vengeful act of rebellion for Bush’s election to the presidency.

Perhaps the most significant falsehood perpetuated by the Democrats’ victim strategy involves the claim that the filibuster is an essential component of the judicial appointment process. This claim directly contradicts the framers’ intention regarding confirmation of federal judges.

As Professor William Ross notes in his study of the appointment process, the plain language of the Constitution contemplates a simple majority vote of the U.S. Senate for any judicial nominee. Indeed, over the two-plus centuries since the Constitution was adopted, a simple majority approval has been the governing standard for judicial appointments. But the filibuster essentially negates this standard, because the denial of a vote on a nominee produces the same result as rejecting that nominee in a full-Senate vote.

As Professors Catherine Fisk and Erwin Chemerinsky conclude in their Stanford Law Review article on the subject, the use of the filibuster to block judicial nominees is a clear violation of constitutional design. It also produces the illogical result in which the mere decision to vote on a nominee requires a greater majority than does a decision to actually confirm that nominee. However, just because the Constitutional does not forbid the filibuster, Democrats have made the perverse argument that the Constitution mandates the use of filibusters by a minority party seeking to obstruct the appointment of federal judges.

Writing during the Clinton presidency, Professors Fisk and Chemerinsky characterized the filibuster as a “minority veto” having “little to do with deliberation and less to do with debate.” Rather than being a means of eliciting more information or facilitating negotiation, the filibuster is simply a ploy to shift the balance of power to a minority of senators and create gridlock in the appointments process.

The Constitution is explicit about the specific congressional acts requiring more than a simple majority -- acts that in effect carry a presumption of disapproval. For instance, the Constitution imposes a two-thirds requirement for overriding a presidential veto, removal after impeachment, ratifying a treaty, and congressional proposal of a constitutional amendment. Nowhere does the Constitution say that such a supermajority is needed for judicial appointments, yet this is the result when a minority party deliberately employs the filibuster to block those appointments.

Harry Reid and his Democratic colleagues are dead wrong when they argue that the filibuster is a longstanding tradition enjoying unquestioned constitutional approval.

A host of constitutional scholars have in fact advocated reforms similar to the one now proposed by Senator Frist. For instance, Professor Michael Gerhardt in his book The Federal Appointment Process (2000) calls for the adoption of procedures that would weaken or eliminate the stranglehold of filibusters over the appointment process.

The Democrats are right about one thing: the Constitution is being subverted in the way the Senate is handling President Bush’s judicial nominees. But if they really want to see the cause of subversion, the Democrats should look in the mirror rather than across the aisle.

Patrick M. Garry is a professor at the University of South Dakota's Law School who regular writes on the subjects of law and politics. He is also the author of Nation of Adversaries: How the Litigation Explosion is Reshaping America (Insight Books).

Poor Political Strategery For The Democrats On The Judicial Filibuster

While there has been an enormous amount of discussion about the nuclear option and judicial filibusters, one thing that hasn't been discussed is the poor political strategy of the Democrats throughout this whole fight.

This hasn't come into clear focus because the nuclear option hasn't been used as of yet. But, given that Frist is going to get the process started this week, you can bet that he's sure that he has the votes he needs to make it happen. So when the dust clears, what are the Democrats going to have gained for their filibusters?

Nothing.

All the judges that Bush renominated? They're going to be confirmed. If Bush gets an opportunity to appoint a Supreme Court Justice, the Democrats will be powerless to stop him. Furthermore, because the Democrats have been openly threatening to shut down the Senate if they lose this vote, they have helped to prove to the public that Republicans are right to call them "obstructionists" -- a charge that helped sink Tom Daschle's Senate campaign in 2004. Moreover, the Democratic base will be demanding that Harry Reid follow through on his threat to shut down the Senate which will only hurt the Democrats even more with the American public.

Maybe the Democratic leadership thought it was worth the gamble, but with 55 Republicans in the Senate and Cheney as a potential tiebreaker, it just wasn't a smart move to go for broke on judges.

Consider some of the other political options Democrats could have gone with.

1) Had the Democrats chosen to do so, they probably could have killed several of the current nominees in exchange for an ironclad, public promise to cease filibustering judges. Republican Senators wouldn't have liked that deal, but the RINOS would have jumped at the opportunity to avoid the nuclear option.

2) Given that the furor over judges took almost two years to build, the Democrats may have been able to get away with saving the filibuster for a Supreme Court Justice. With Rehnquist likely to retire, the Dems could have probably gotten away with filibustering a couple of Bush's appointees and forced him to send another Anthony Kennedy or Sandra Day O'Connor to the Supreme Court in the place of a real conservative judge.

3) Frist's deal -- which included up to 100 hours of debate for every nominee and a guarantee that every nominee would get out of the judiciary committee and get an up or down vote -- was actually a pretty good deal for Democrats considering the current political lay-of-the-land.

For one thing, if Democrats actually forced 100 hours of debate on every nominee they considered "controversial," they would probably manage to kill a few of them because Republicans wouldn't want to waste that much floor time.

Furthermore, although it's impossible to say for sure at this point, the numbers game looks to favor the GOP in 2006 and we will probably be able to add Republican seats in the Senate. So even if a Democrat becomes President in 2008, he or she is likely to face a heavily Republican Senate and a Judiciary Committee where the GOP has a large edge.

Quite frankly, Democratic nominees stand a better chance on the floor where there are several RINOs who might vote for them, rather than in the Judiciary Committee. So getting every nominee to the floor for a vote would have been very beneficial to the Democrats.

Now maybe the Democrats will compromise at the last minute or perhaps they are still holding out hope that they're going to pull victory from the jaws of defeat and will be allowed to continue to filibuster judges. But, it looks much more likely that they're going to lose the vote and then they're going to further hurt themselves politically by bringing the people's business before the Senate to a halt.

Not only is what the Democrats are doing not allowed by the Constitution and contrary to 200+ years of Senate tradition, it's poor political strategy. Harry Reid and company would have been wise to go in a different direction.

-- John Hawkins, rightwingnews.com

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