Posted on 11/13/2003 11:56:02 AM PST by Qwinn
This morning, we know for sure: the Senate Republicans are serious about President Bush’s judicial nominees.
There had been some question. Up until 6 PM last night, all the Majority Leader Bill Frist and his staff had to offer was talk. We heard from the Senator’s senior advisor that Frist had an “itchy trigger finger” to get something done about the nominees being filibustered by his Democrat colleagues. Months ago, they told us to “get ready for hardball.” Even before that, it was “Anything is possible, nothing is off the table.” And so when Frist’s staff told us last week, “Get ready for fireworks,” I thought I knew what to expect: nothing.
But this morning, nobody can doubt that all that’s changed. At 6 PM last night, Frist opened a marathon all-night filibuster debate that’s scheduled to go on until at least midnight on Thursday—30 hours or more in total. With the Senate set to adjourn next week and the Medicare bill, the Energy bill, and appropriations still up in the air, Frist’s scheduling of this debate is as bold as its format; this is serious.
The Senate Democrats’ judicial obstruction deserves this attention. So far the Democrats have filibustered four of President Bush’s judicial nominees: District Judge Charles Pickering of Mississippi, Texas Supreme Court Justice Priscilla Owen, Alabama Attorney General William Pryor, and Miguel Estrada, who withdrew his nomination after waiting for a vote for two years. Democrat senators’ holds and promised filibusters block another dozen or so nominees. This state of affairs is unprecedented: never before has the Senate denied a judicial nominee a simple up-or-down vote with a filibuster. (No, Abe Fortas’s 1968 nomination to Chief Justice of the Supreme Court doesn’t count; President Johnson, sensing that Fortas would lose an eventual vote to bipartisan opposition, withdrew Fortas’s nomination after four months and one lost cloture vote.)
It is not clear that the Democrats’ filibuster strategy is even constitutional. It takes sixty votes, which the Republicans don’t have, to break a filibuster. The Constitution—Article II, Section 2—stipulates that president shall nominate judges with the “Advice and Consent” of the Senate. When the Constitution requires supermajority approval—such as when making treaties, mentioned in the same section—the Constitution says so. The Framers attached no such requirement to judicial nominations in the Constitution. As even Democrat Senator Zell Miller said around 2 AM this morning, a supermajority requirement is “simply not there.” Nomination decisions should be by majority: 51 votes.
As ever, “Justice delayed is justice denied,” The Democrats block judicial nominees to every circuit court in “judicial emergency”—that is, those benches so understaffed that citizens suffer delays of months or years in seeking justice.
Just as troubling, the filibusters throw the future of the nomination process into uncertainty. Given the scrutiny applied, for example, to Kuhl—who has been vilified by Senate Democrats as racist and “extremist” and “hostile to women” (these latter two quotes from Sen. Barbara Boxer) for a memorandum to which she contributed as a junior staffer in the Office of the Solicitor General—who in the future will willingly submit to such indecencies and harassment? And will the special interest groups that are driving the filibusters—like People for the American Way and the National Abortion and Reproductive Rights Action League—become emboldened with their success and push for more? There are special interests on both sides of the aisle; if any group able to line up forty senators can block a judicial appointment, the result will be complete deadlock in the nomination process.
Until last week, Frist had three options to handle the Democrats’ “unprecedented effort” (that characterization taken from a fundraising email sent by Democrat Senator Jon Corzine), and two of them weren’t really options. The most attractive—and least likely—is passage of the Frist-Miller Filibuster Reform Act, which would cut filibusters down to six or seven days at most. Being a rule change, the measure needs a two-thirds vote and no Democrats, save Miller, would vote in favor. Despite that, the Act is scheduled for a vote on Friday, when it will be defeated.
A much-discussed alternative is the “Constitutional option”—sometimes the “nuclear option,” so-called for the “nuclear winter” that would follow. In this case, the Republicans would push a majority-only rules change with permission from the Senate President, Vice President Dick Cheney. For now, “going nuclear” is impossible: Frist would need 51 votes and several Republicans, including John McCain, don’t support it. Going nuclear half-cocked would be disastrous; all work in the Senate would simply halt. Even winning such a rules change could have a similar result, though at least the appointment filibusters would be broken.
Give Frist that he’s creative: staging a marathon executive session was not an obvious solution to the filibuster problem because, directly, it won’t accomplish anything. No Democrat is going to change his or her vote. Frist’s genius was to discard that goal and fight a larger battle. These thirty hours—or at least the twelve that have passed so far—are theater, but a “theater of truth,” as Sen. Arlen Spector put it early on.
This drama is put on for the sake of three audiences: conservative activists, the public, and the Republican senators. Activists wanted to see action, and this morning they are rallying. Free Republic, a right-wing online forum, had over 2,000 posts to about the marathon by midnight, six hours in. Representatives from dozens of groups with an interest of the issue filled the Senate galleries all through the night and overflowed into the hallways and stairwells. Others have been broadcasting over the Internet for hours to thousands of listeners. Still others are holding hourly press conferences elsewhere in the Capitol. The filibuster issue has a momentum that until yesterday would have been unimaginable.
It’s spilled over into the mainstream. CNN, MSNBC, and Fox News are abuzz. So is the radio, and that will only pick up during drive time. The filibusters are already on the front page of plenty of newspapers (well, not the New York Times) and will be the lead topic today on almost every talk radio show. All of this matters. While polls show that the public strongly supports simple up-or-down votes for judicial nominees, few outside of Washington are aware of the extent and uniqueness of the Democrats’ current obstructionism. If the current coverage is any indication of the way this will play throughout the day and tomorrow, a lot of Americans could have a changed opinion of the Senate Democrats by the weekend.
The Democrats, for their part, might have done well to be silent. Instead, they agreed to take half of every hour on the floor. Rhetorically, they have largely splintered, discussing any number of issues, from the economy to the minimum wage to healthcare to the history of chamber’s wooden desks (that latter was Sen. Mark Pryor reading from Robert Caro’s Master of the Senate), regrouping only to point at a bright blue sign: “168 to 4,” the number of nominees passed versus those filibustered. Sen. Jon Corzine went so far as to profess himself “not interested” in the issue at hand.
Corzine missed the boat. From Friday on, judicial nominations will matter more than ever. If Frist keeps the pressure on, judicial obstructionism will be an election issue. Democrats risk alienating their (easily alienable) base if they give in, and losing swing voters if they don’t. Republicans need only stay the course.
The Insider's Update is a weekly column that focuses on important issues facing the nation and promotes the broad conservative principles of Townhall.com partners. Andrew Grossman is editor of the Insider magazine, which is published by the Coalition Relations Department of The Heritage Foundation.
Qwinn
Nah, right-wing FR is, and probably always will be, with a strong libertarian seasoning and occasional DU disruptors.
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