Judicial nominees having a rough time
Winston Churchill said: “Democracy is based on reason and fair play.” Today in the United States Senate, reason and fair play are taking a severe beating as two of President Bush’s judicial nominees are finding out.
Over the past 12 weeks, a small group of senators has refused to allow the names of these highly qualified individuals to come to the floor for an up or down vote. They are able to do this because of Rule 22.
Rule 22 is one of the 43 permanent standing rules that govern how the U.S. Senate is to operate. However, Rule 22 has the distinction of being the “filibuster rule.” It allows a minority of senators to block from a vote any bill that they may object to, and is unique to the U.S. Senate.
The filibuster had its modern heyday during the civil rights era. Southern senators would often use the filibuster to block any attempt to pass civil rights legislation. At that time, a filibuster was really a filibuster. Senators who filibustered were required to begin speaking, and once begun, they had to keep speaking until either they could convince other senators to join them in order to keep the filibuster going, or until the bill they objected to was withdrawn.
Strom Thurmond, who just recently retired from the Senate at age 100, after nearly 50 years there, is generally credited with having waged the last real filibuster, talking continuously for nearly 24 hours during the debate over the Civil Rights Act of 1957.
The filibuster was objectionable then, but at least senators of that era had to follow through and actually filibuster. During the 1980s, a “gentlemen’s agreement” between the parties did away, more or less, with the filibuster. Under the “filibuster-lite,” all a senator has to do is give his leadership 24 hours notice that he intends to filibuster, and it has the same effect of blocking senate business, but without the “filibustering” senator actually having to filibuster.
So something that was already outrageous has been made even more so, if that is possible. Senators defend their right to “unlimited debate” as something so sacred that it would seem to be enshrined in the Constitution. Article 1, section 5 of the Constitution states simply that “each house may determine its own rules.” The filibuster then is a creature that was created by the Senate for the Senate.
While it is true the Senate was created to be the more deliberative chamber, less susceptible to popular passions, what is being done to these judicial nominees is first an abuse of the advise and consent role of the Senate.
It is also an affront to the fundamental sense of fair play I think most Americans have – the feeling that, win or lose, a person deserves a fair hearing.
Finally, and most dangerously for the Constitution, the holding hostage of these judicial nominees by a few senators for political reasons imperils the independence of the judicial branch, putting it at risk of becoming a mere appendage of the legislative branch. That is a scary thought.
Tennessee’s own Sen. Bill Frist has introduced Senate Resolution 138, that addresses this problem through a series of declining cloture votes, beginning at the current requirement of 60 votes and reducing by three votes on each successive vote until a simple majority of senators either confirms or rejects a judicial nominee. The right of senators to state their case for or against a nomination is thus preserved while affording these men and women the up or down vote they deserve.
Sen. Zell Miller, Georgia’s senior Democratic senator is a co-sponsor with Frist of this resolution. In his testimony before the Senate Rules Committee in early June on this matter, he put it very well when he said that not correcting this problem would establish the precedent “? that 41 sore losers can always win over 59 advocates. What kind of new math is that? Forty-one beating 59 ?”
Amen to that.
(Paul Farley is a Warren County columnist who can be reached by e-mail at [email protected].)