A shaky filibuster deal

Rocky Mountain News ^ | June 3, 2005 | Mike Rosen

[Millee]

The filibuster isn't a noble institution, it's a tactic - and one with a checkered past, at that. Liberals decried it in the 1960s when segregationist Southern Democrats used it to thwart the will of the majority to block civil rights legislation. But at least that tawdry application of the filibuster was consistent with its purpose in the United States Senate as a procedure to force legislative compromise.

[Millee]

Informative article.

[ajolympian2004]

Mike doesn't mind if you post the whole article on FR. I've talked to him personally about this a few times...
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The filibuster isn't a noble institution, it's a tactic - and one with a checkered past, at that. Liberals decried it in the 1960s when segregationist Southern Democrats used it to thwart the will of the majority to block civil rights legislation. But at least that tawdry application of the filibuster was consistent with its purpose in the United States Senate as a procedure to force legislative compromise.

Legislation and the rules associated with it are intrinsic to the legislative branch of government. The nomination and confirmation of federal judges, on the other hand, is a process that affects all three branches of government. Prior to the presidency of George W. Bush, a filibuster had never prevented a judicial nominee with majority support form being confirmed. (Three short-lived judicial filibusters since 1968 were all ended by cloture votes, with all three nominees ultimately confirmed. When Abe Fortas was nominated by President Lyndon Johnson to be elevated to chief justice, he was already a sitting justice of the U.S. Supreme Court. After a four-day filibuster - not four years - when it was obvious that opposition to him was bipartisan and that the votes weren't there to confirm him, his nomination was withdrawn. Fortas later resigned from the court under an ethical cloud.)

The filibustering of judicial nominees by the minority party in the Senate, not to "extend debate" but to permanently deny an up-or-down vote, is nothing more than anti-democratic obstructionism. In the 2004 presidential and Senate elections, Republican and Democratic voters understood only too well that the composition of the federal courts hung in the balance. That's why we have elections. Had Democrats won the White House and carried the Senate, they would have had every right to put their people on the bench. Since Republicans won, they're entitled to balance out President Clinton's appointments to the appellate courts and the Supreme Court.

Angry Republicans who condemned their party, as a whole, for caving in to Democrats in the showdown over judicial filibusters have allowed their frustration to overwhelm their reason. Forty-eight Republicans held firm with the party leadership. Only seven defected, joining seven Democrats in the so-called "memorandum of understanding." Had the Meandering Seven refused, instead, to support a ruling to change Rule XXII so that a simple majority could end a judicial filibuster, we'd be back to square one, anyway.

It's no surprise that these wavering Republicans were lauded in the dominant liberal media as great compromisers. Media liberals don't want conservative justices on the federal bench any more than Senate Democrats do. Personally, I suspect their celebration is premature. If Senate Democrats honor the spirit of the compromise, they won't block reasonable nominees with a filibuster. (Since they've now agreed to allow a vote on Judges Priscilla Owen and Janice Rogers Brown, these must be reasonable nominees. If that's the standard, Senate Democrats will be hard pressed to declare other nominees "extraordinary" simply because they're conservative.) In that case, there won't be any Democratic filibusters, which will be fine with Senate Republicans.

I'm not holding my breath on that outcome. The greater likelihood is that the deal won't hold up. That it'll only postpone the inevitable showdown. For Senate Democrats, the battle over circuit court nominees is the under card. The main event is the Supreme Court. The last Supreme Court justice confirmed under a Republican president was Clarence Thomas (who wasn't filibustered, by the way.) Democrats don't want something like that to happen again. The prospect of someone like Judge Janice Rogers Brown, a black conservative woman, making her way to the Supreme Court petrifies them as a threat to their coalition, peeling off traditional Democratic voters to Republicans.

Of the Republican defectors, Sens. Olympia Snowe, Susan Collins and Lincoln Chafee are liberals. John McCain is a free agent with his own agenda who relishes his role as the favorite Republican of media liberals. These were never reliable votes to break the Democratic logjam.

That leaves John Warner, Mike DeWine and Lindsey Graham, who are nominally conservative. If Senate Democrats renege on their deal and invoke the "extraordinary circumstances" option cavalierly to filibuster reasonable nominees, Warner, DeWine and Graham have intimated that the compromise will be void and that they'll be free to support the revision of Rule XXII.

We'll see how it turns out.

Mike Rosen's radio show airs daily from 9 a.m. to noon on 850 KOA.