Up, Down or Out

Bob Dole editorialized in the NYT In the coming weeks, we may witness a vote in the United States Senate that will define the 109th Congress for the ages. This vote will not be about war and peace, the economy or the threat from terrorism. It will focus instead on procedure: whether the Senate should amend its own rules to ensure that nominees to the federal bench can be confirmed by a simple majority vote....

By creating a new threshold for the confirmation of judicial nominees, the Democratic minority has abandoned the tradition of mutual self-restraint that has long allowed the Senate to function as an institution....

When I was a leader in the Senate, a judicial filibuster was not part of my procedural playbook. Asking a senator to filibuster a judicial nomination was considered an abrogation of some 200 years of Senate tradition. To be fair, the Democrats have previously refrained from resorting to the filibuster even when confronted with controversial judicial nominees like Robert Bork and Clarence Thomas. Although these men were treated poorly, they were at least given the courtesy of an up-or-down vote on the Senate floor. At the time, filibustering their nominations was not considered a legitimate option by my Democratic colleagues - if it had been, Justice Thomas might not be on the Supreme Court today, since his nomination was approved with only 52 votes, eight short of the 60 votes needed to close debate.

That's why the current obstruction effort of the Democratic leadership is so extraordinary. President Bush has the lowest appellate-court confirmation rate of any modern president. Each of the 10 filibuster victims has been rated "qualified" or "well qualified" by the American Bar Association. Each has the support of a majority in the Senate. And each would now be serving on the federal bench if his or her nomination were subject to the traditional majority-vote standard.

This 60-vote standard for judicial nominees has the effect of arrogating power from the president to the Senate. Future presidents must now ask themselves whether their judicial nominees can secure the supermajority needed to break a potential filibuster. Political considerations will now become even more central to the judicial selection process. Is this what the framers intended?

If the majority leader, Bill Frist, is unable to persuade the Democratic leadership to end its obstruction, he may move to change the Senate rules through majority vote. By doing so, he will be acting in accordance with Article I of the Constitution (which gives Congress the power to set its own rules) and consistently with the tradition of altering these rules by establishing new precedents. Senator Frist was right this past weekend when he observed there is nothing "radical" about a procedural technique that gives senators the opportunity to vote on a nominee.

Although the Democrats don't like to admit it, in the past they have voted to end delaying tactics previously allowed under Senate rules or precedents. In fact, one of today's leading opponents of changing the Senate's rules, Senator Robert Byrd, was once a proponent of doing so, and on several occasions altered Senate rules through majoritarian means. I have great respect for Senator Byrd, but Senate Republicans are simply exploring the procedural road map that he himself helped create.

McQ blogged Note his point about the 10 nominees. All have been found to be qualified by the ABA. Now if that was good enough in the past (a qualification, if I recall correctly, which Democrats of the past demanded be included in the process) then, as some have alluded too in comments here, it appears that they've gotten past the "radical" label and are "centerist" enough for the ABA to be deemed, at a minimum, "qualified". Isn't that what the role of 'advice and consent' has traditionally meant? Determine qualifications and vote on them in an up or down vote?

Betsy Newmark blogged Bob Dole explains why Frist has the power to ask for a rule change to end the filibuster of Bush's judicial nominees and how the Democrats have brought this situation on themselves.

K. J. Lopez blogged Bob Dole has a sensible op-ed in the NY Times today on judges and Senate rules

I hope that they will go ahead and do it, get these judges on the bench, and be ready for any USSC vacancies, and then get on with other important matters.