The Republicans' New Perspective on the Filibuster
In the Senate debate over the filibustering of
judicial nominees, it's helpful to know something about congressional
procedure, democratic theory and constitutional interpretation.
But none of those is as important as the oldest law of politics:
Where you stand depends on where you sit.
Republicans are currently perched atop a comfortable
majority, with 55 out of 100 senators. Like majorities everywhere,
they really like majority rule. Democrats, who once took control
of Congress as their natural birthright, have gotten used to being
outnumbered in the Senate. So they are determined to use any tool
to keep the majority from imposing its will.
Bush's favorite Supreme Court justice, Antonin Scalia, was lionized
by conservatives for his blistering dissent when the court struck
down laws against sodomy. In that opinion, Scalia denounced "the
invention of a brand-new 'constitutional right' by a court that
is impatient of democratic change."
But GOP conservatives
have decided it's their turn to play inventor. They have convinced
themselves that the filibustering of judicial nominees is unconstitutional,
and that those nominated to the federal bench have a constitutional
right to an up-or-down vote by the full Senate.
says the president appoints judges with the "advice and consent"
of the Senate. Conservatives interpret this to mean the Senate
has the power to accept or reject a nominee, but not to do nothing.
The filibuster, however, allows as few as 41 senators to block
a vote indefinitely. So Senate Majority Leader Bill Frist, R-Tenn.,
has threatened to change the rules to ban its use against judicial
two things wrong with the Republicans' argument: 1) It has zero
support in the text of the Constitution, and 2) it's completely
at odds with their handling of judges nominated by President Clinton.
has one thing to say about the rules of the Senate: that those
rules are not to be found in the Constitution. "Each house
may determine the rules of its proceedings," it states in
Article I, Section 5, at which point it abruptly drops the subject.
the filibuster, however, say there are limits to Congress' authority
over its own deliberations. In their view, rules may not impose
a "supermajority" requirement that the Constitution
doesn't provide (as it does for treaties and constitutional amendments,
which have to pass by a two-thirds vote).
but where did they find it? Not in the Constitution. The "advice
and consent" clause doesn't even say that a majority of senators
is needed to confirm a nominee. The definition of "consent"
is left to the Senate.
are fond of citing Sarah Binder of the Brookings Institution,
a leading scholar on the filibuster who supports strict new limits
on its use. They often quote her declaration (made in an article
co-written with Steven S. Smith of Washington University) that
this procedure, far from being part of the framers' design, "was
not created until 1806" -- and "probably by mistake."
They prefer not to quote other lines from that article, such as:
"No reading of the Constitution can support the idea that
filibusters are unconstitutional."
portray the Democrats' use of this device against judicial nominees,
however, as shockingly unprecedented. In fact, the GOP used the
filibuster to block Lyndon Johnson's 1968 nomination of Abe Fortas
for chief justice of the United States. More recently, they tried
valiantly to filibuster six of President Clinton's choices for
the federal bench.
they didn't need this tactic to prevent the full Senate from voting.
Richard Paez, nominated to an appeals court, had to wait more
than four years for the Senate to vote on his confirmation. Particularly
during the last year of the Clinton presidency, Republicans were
loath to fill vacancies that might be filled by George W. Bush.
Often, the GOP-dominated Judiciary Committee simply refused to
send such nominations to the floor. That and other delaying tactics
were used against some 60 Clinton appointments to the bench.
If the Constitution
guarantees nominees a full Senate vote, there are a lot of Clinton
nominees whose rights were rudely trampled. It's hard to see why
blocking a nomination by means of a filibuster is illegitimate,
but blocking one by means of committee inaction is not. It's hard
to see why a parliamentary procedure that has existed for two
centuries is suddenly unconstitutional.
you can't see something because your view is obstructed. Sitting
atop all three branches of government, Republicans suddenly have
no trouble seeing the need for the majority to get its way, right
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