Filibuster myth-busters

By Wendy Long write in the Washington Times If you were a senator, whose views would be more important to you: liberal special-interest groups, or registered voters?

The liberal groups demand that Democrats filibuster (prevent the Senate from voting on) some of President Bush's best-qualified nominees to the federal appeals courts. But a recent Ayres McHenry nationwide survey reveals that 82 percent of registered voters believe well-qualified nominees deserve a Senate vote. That includes 85 percent of Republicans, 81 percent of Democrats, and 81 percent of Independents.

Some Senators apparently believe voters won't see through partisan obstructionism. But they can't possibly believe the other myths about the filibuster.

Myth No. 1:Filibuster of judges is a sacred tradition.

Fact: The filibuster is nowhere in the Constitution. It is not among the "checks and balances" our Founding Fathers created. It did not even exist until the 1830s, and the "tradition" involves legislation, not judicial appointments. The filibuster was used to defend slavery and oppose the Civil Rights Act — hardly noble purposes. The current obstruction of judges is no "traditional" filibuster: it is the first time in more than 200 years that either party has filibustered to keep judges with majority support off the federal bench.

Myth No. 2: Mr. Bush's nominees are being treated no differently than other presidents' nominees.

Fact: In the last Congress, 10 of the president's 34 appellate nominees were filibustered — the lowest confirmation rate since FDR. Democrats mask their sabotage of these nominees by citing the confirmation rate of judges to federal courts overall — an irrelevant statistic, because the federal courts of appeal make final rulings on most issues of constitutional law. Liberals also argue that Abe Fortas was not confirmed as Chief Justice in 1968. But Mr. Fortas was opposed by a Senate majority (both Republicans and Democrats), and President Johnson withdrew the nomination. Today, a Senate majority supports the nominees, and the president is not withdrawing them.

Myth No. 3: The Senate has a "co-equal" role with the president in judicial nominations.

Fact: The Constitution expressly gives the president — and only the president — the power to nominate federal judges. All the Senate can do is say "yes" or "no" to the president's choices. That is the "check" in the "checks-and-balances" system, to make sure no unqualified nominee becomes a federal judge. It does not give Senators — and a minority of Senators at that — the power to insist on judges who suit their own ideology.

Myth No. 4: The current filibuster is about "free speech."

Fact: Historically, the filibuster has given senators in the minority a chance to speak on the Senate floor before the majority rushes to pass a bill. But the current filibuster is not about the right to speak out. It is about blocking judges. These nominees have been pending for months — some for years. There has been, and remains, ample time to speak about them. The majority welcomes free speech and free debate — followed by a free vote.

Myth No. 5: The filibuster protects "the right of the minority" to veto nominees.

Fact: The Constitution requires two-thirds vote for certain things. Appointing judges is not one of them. So the basic principle of democracy applies: The majority decides. The filibuster of judicial nominees turns majority rule on its head, because 41of 100 senators can keep a judge off the bench without ever even voting.

A liberal minority needs federal judges to advance their agenda — allowing child pornography as free speech, mandating same-sex marriage, removing "under God" from the Pledge of Allegiance, banning school prayer and preventing the death penalty for murderers and terrorists — because they can't win these issues at the ballot box. Mr. Bush promised to nominate judges who will apply the law as written and stay out of politics. The recent Ayres survey shows 67 percent of voters agree that "we should take politics out of the courts and out of the confirmation process." A full 61 percent of Democrats agree with this statement, as well as 73 percent of Independents and 69 percent of Republicans.

The American people want senators to do the job our tax dollars pay them to do. Senators who fail to do their jobs — either by failing to show up for their committee meetings, by voting against restoring the Senate tradition of up-or-down votes for judges, or by halting the work of the federal government — might find themselves out of work when they really need the consent of the governed: at their next election.

Wendy E. Long is counsel to the Judicial Confirmation Network, a former Clerk to Justice Clarence Thomas and former press secretary to former Sens. Gordon Humphrey and Bill Armstrong.

Matt blogged posted this at BlogsForBush.

Robert Novak writes Republican leaders count only two or three GOP senators who will vote against the efforts to end, by a straight majority vote, filibusters on confirmation of judicial nominations.

Sens. Olympia Snowe of Maine and Lincoln Chafee of Rhode Island will not support this move, and they are likely to be joined by Sen. John McCain of Arizona. That would mean 52 senators would go along with the parliamentary maneuver attempting to end filibusters on judges. Only 50 are needed.

The only Democrat who might possibly join this effort is Sen. Ben Nelson of Nebraska. But Bush will not press him to break party discipline if his help is unnecessary.

Michael Crowley wrote in The New Republic Everyone is waiting to see whether Senate Majority Leader Bill Frist can muster the 51 votes he needs to trigger the so-called "nuclear option" and change the Senate's rules to prevent Democrats from filibustering judicial nominees.

But, even as reporters buttonhole every fence-sitting Republican to parse their latest thoughts about the nuclear option, few people are talking about what would follow Frist's mushroom cloud. Call it nuclear winter: the scenario in which Democrats retaliate by exploiting Senate procedures to plunge the institution into chaos and prevent anything from getting accomplished. Think Mad Max Goes to Washington. "We will deny Republicans the bipartisan cooperation that allows the Senate to function effectively," says Jim Manley, spokesman for Senate Democratic leader Harry Reid. Translation: You want to rename a post office? Better allow a couple days for it. As People for the American Way President Ralph Neas, a key organizer of liberal resistance to the nuclear option, puts it, "Detonating a nuclear weapon will have nuclear fallout."

This is classic deterrence theory at work. Democrats are talking about political Armageddon in the hope that Republicans will chicken out. Unfortunately, it's easier for Democrats to threaten dire consequences than it would be to enact them. Because, while Democrats feel they are morally justified in shutting down the Senate, some are concluding that, as political a matter, the strategy is too radioactive to handle.

Democrats certainly have the power to shut down the Senate. Virtually all of the chamber's business is conducted with the "unanimous consent" of all 100 senators. Usually that's a formality. But a senator always has the power to stand up and raise a procedural objection that requires a majority vote to dismiss. Senators rarely exercise such power because it infuriates their colleagues and, if everyone did it, nothing would ever get done. Reid and company could start raising nonstop objections, however--forcing multiple votes on, say, a resolution congratulating the national champion University of North Carolina basketball team. Frist would have to keep 51 friendly senators near the Senate floor to accomplish anything, which is about as easy as keeping dozens of grasshoppers in an uncovered box. The Senate rarely operates smoothly. But, in a nuclear winter, it would be about as efficient as your average Department of Motor Vehicles--and about as pleasant....

The specter of a shutdown certainly pleased the pugilistic liberal left. But it seems to have spooked Senate Democrats, who now emphasize all the things they don't intend to block, like bills dealing with national security or "critical government services." Where their tone was once bellicose, Democratic staffers are now circumspect....

Why the skittishness? Perhaps because Republicans like Grassley quickly offered a shrewd response: that Democrats were threatening to "shut down the government," a phrase that evokes the disastrous budget showdown the Gingrich Republicans forced with the Clinton White House in 1995....

So what are the Democrats willing to hold up? There aren't many good targets. Republicans have already passed major class-action and bankruptcy reform bills.... "Now that the Republicans have gotten all their agenda items through, they can afford to piss off their business backers" who are always trying to pass pet provisions, says one Democratic strategist. Meanwhile, some Democrats complain that Reid's promised exception for "national security" legislation was a blunder. "From a tactical perspective, Reid made a mistake," adds the strategist. "He created a litmus test for national security. Well, suddenly everything becomes vital to our national security." And, with the apparent demise of Bush's Social Security plan, there aren't many other major Republican agenda items left. Even a pork bonanza like the $284 billion highway spending bill would seem to pose too many hazards for obstruction-inclined Democrats. "Do they really want to go back to their states and say, 'Yeah, I know you're not getting the road funding that you wanted, and it's all because of a judge'?" asks an aide to one leading pro-nuke Republican senator.

I hope the will finally get the nerve to try it, whether they call it the Constitutional Option, or the Nuclear Option, or something else.