Since I am brain dead here is something to chew on anyways
Dems' filibustering of judicial nominations is just politics
Tony Quinn
Sunday, May 15, 2005
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Nothing is quite so tawdry as watching liberal Democrats suddenly find constitutional virtue in the filibuster. For decades, liberals tried to rid the Senate of the filibuster because it frustrates majority rule, just as they have pushed to repeal California's two-thirds requirement for passing budgets and raising taxes.
The filibuster is not a constitutional icon. It dates from a 19th century practice of senators talking until they dropped in order to stop legislation they did not like. In the 20th century Southern senators discovered the filibuster as a way to derail civil rights legislation. The most notorious use of the filibuster was in the 1930s and 1940s, when white Southerners regularly kept black citizens in line by lynching them. Efforts by Northern senators of both parties to pass federal anti-lynching laws were frustrated by Southern senators' filibusters. They simply talked the legislation to death.
Not until 1975, with the reformist post-Watergate Senate, were realistic limits placed on the filibuster. A rule was adopted that 60 senators could stop unlimited debate. Until World War I there was no limit on debate, and then a two-thirds vote rule was in effect.
Now this hoary practice of unlimited debate to kill legislation is being used to stop President Bush's judicial nominations. But even in its heyday, the filibuster was not used to defeat judges or other executive branch appointees.
The Senate's advise-and-consent powers are a vital part of our constitutional balance. They allow senators to reject presidential appointees. But the historical understanding was that a majority of senators, not 60 percent as required to stop a filibuster, was the threshold for consent to a presidential nomination. Only once before was the filibuster used successfully against a judge, in 1968 when lame-duck President Lyndon Johnson tried to elevate his crony, Supreme Court Justice Abe Fortas, to chief justice -- and then Fortas simply withdrew when it became clear he did not have the votes to win.
Today's battle over filibustering judicial nominations is just plain old politics.
Democrats lost control of the Senate in the 2002 elections. They did even worse in 2004. Unable to control the Senate, they are now trying to reinterpret Senate rules to expand the advise-and-consent power far beyond its historical meaning.
And to what effect? The elevation of California Supreme Court Justice Janice Rogers Brown to the federal court of appeals will hardly destroy the federal judiciary. The California Supreme Court has survived Brown; so will the federal bench. In fact, confirming all seven of the currently filibustered judges will not make much difference in the federal court system. It's hardly the right-wing putsch its hysterical opponents claim.
The real battle, of course, is about the Supreme Court, but even here Democrats are overplaying their hand. The most likely opening is the seat of the ailing Chief Justice William Rehnquist. Replacing him with another conservative won't change things much. Democrats would be very wise to restrain their fixation with filibustering judges until they really have something to filibuster about.
Republicans may have overstepped in using the filibuster to stop Fortas, who was later forced to resign from the Supreme Court for corruption.
The advise-and-consent powers were correctly used to defeat the nomination of Robert Bork to the Supreme Court in 1987. Here was a case where a majority of senators from both parties decided he lacked the necessary judicial temperament. The Bork case proves advise and consent works without the need for filibusters.
It is not just that Democrats may one day again control the executive branch and want to appoint their own Janice Browns to the courts. Advise and consent is by its nature a limited power of the Senate, to be used only in the rare circumstance in which a presidential nominee is so unqualified that a majority of senators feels compelled to turn him or her down.
Just because a minority of senators doesn't like a judge's particular rulings is no excuse for a filibuster. And if they are not careful, Democrats will be forced to give up this power altogether.
Tony Quinn, a Republican political analyst, is co-editor of the California Target Book, a nonpartisan analysis of legislative and congressional elections.