Last week I watched Senate committee hearings on proposed legislation to make it easier to end the filibusters over President Bush’s judicial nominees. This was a decidedly post-modern event. It began well enough. When I surfed over to C-SPAN, Ted Kennedy was finishing his testimony to the committee. Zell Miller, a Democrat from Georgia, was next. He ripped his party for conducting anti-democratic filibusters against highly qualified judicial nominees. Next came a panel of law professors. Two of them — Douglas Kmiec, Dean of the Catholic Universtiy law school, and John Eastman of Chatman law school and the Claremont Institute — made effective presentations in favor of the proposed legislation.
It was when the Senators began asking questions that things started to become surreal. The Republican questioner was Trent Lott; the Democrat was Chris Dodd. (Mark Dayton of Minnesota also did a little questioning. Based on what I heard, I can only conclude that he is interning in the Senate for the summer). Lott’s jovial approach was no match for Dodd’s sophistry. Working with the one professor who opposed the legislation, Dodd managed to focus the debate on the extent to which the current filibusters lack historical antecedents. According to Dodd and his professor, it depends on what the meaning of “filibuster” is (I’m not making this up). Thus, for example, we were treated to a discussion about whether the experience of a Supreme Court nominee of a lame duck Rutherford Hayes, whose nomination was killed but who was re-nominated by James Garfield and confirmed by the Senate, is analogous to the current goings on.
The relevance of this type of discussion to the debate over the proposed legislation was never explained. The issue is not whether the Democrats can point to occasional nominees who may, depending on the meaning of the word, have been subjected to a filibuster. Legislation isn’t ordinarily enacted to deal with events that occur sporadically, under unusual circumstances. Legislation is enacted to deal with abuses, and the use of filibusters to block the confirmation of a group of court of appeals nominees is both unprecedented and abusive. It threatens to transform the confirmation process from one in which judges can be confirmed by a simple majority into one in which they need a super-majority of three-fifths. Such a regime would be undesirable because it is anti-democratic and would tend to result in an under-staffed permanent judiciary.
From a purely partisan political standpoint, though, it’s not clear to me that the Republicans are in a bad place right now. Only a few nominees are being filibustered (President Bush should name one recess appointee for each nominee who is filibustered in order to place conservatives in the judiciary and to deter the Democrats from filibustering other nominees). Meanwhile, the Republicans have an issue to use against the Senate Democrats. No one knows how important an issue it will be, but it could figure in some Senate races in 2004. Finally, the Democrats are setting a precedent for increased Senate influence over judicial nominees. This is not a bad thing for Republicans because, given the influence of thinly populated rural states in the Senate, the Republicans are likely during the next quarter century to control the Senate more frequently than they occupy the White House (but don’t doubt that if the Democrats ever find themselves in the position the Republcans are in now, they will curb the Senate’s power).
Ultimately, however, political calculation should not control how the Republicans respond to the filibusters. For policy reasons and in fairness to Bush’s nominees, the Republicans should do whatever it takes to put an end to them.
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill
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