Filibuster myth-busters
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The Washington Times
www.washingtontimes.comBy Wendy E. Long
Published April 15, 2005If you were a senator, whose views would be more important to you: liberal special-interest groups, or registered voters?
The liberal groups demand that Democrats filibuster (prevent the Senate from voting on) some of President Bush's best-qualified nominees to the federal appeals courts. But a recent Ayres McHenry nationwide survey reveals that 82 percent of registered voters believe well-qualified nominees deserve a Senate vote. That includes 85 percent of Republicans, 81 percent of Democrats, and 81 percent of Independents.
Some Senators apparently believe voters won't see through partisan obstructionism. But they can't possibly believe the other myths about the filibuster.
Myth No. 1:Filibuster of judges is a sacred tradition.
Fact: The filibuster is nowhere in the Constitution. It is not among the "checks and balances" our Founding Fathers created. It did not even exist until the 1830s, and the "tradition" involves legislation, not judicial appointments. The filibuster was used to defend slavery and oppose the Civil Rights Act — hardly noble purposes. The current obstruction of judges is no "traditional" filibuster: it is the first time in more than 200 years that either party has filibustered to keep judges with majority support off the federal bench.
Myth No. 2: Mr. Bush's nominees are being treated no differently than other presidents' nominees.
Fact: In the last Congress, 10 of the president's 34 appellate nominees were filibustered — the lowest confirmation rate since FDR. Democrats mask their sabotage of these nominees by citing the confirmation rate of judges to federal courts overall — an irrelevant statistic, because the federal courts of appeal make final rulings on most issues of constitutional law. Liberals also argue that Abe Fortas was not confirmed as Chief Justice in 1968. But Mr. Fortas was opposed by a Senate majority (both Republicans and Democrats), and President Johnson withdrew the nomination. Today, a Senate majority supports the nominees, and the president is not withdrawing them.
Myth No. 3: The Senate has a "co-equal" role with the president in judicial nominations.
Fact: The Constitution expressly gives the president — and only the president — the power to nominate federal judges. All the Senate can do is say "yes" or "no" to the president's choices. That is the "check" in the "checks-and-balances" system, to make sure no unqualified nominee becomes a federal judge. It does not give Senators — and a minority of Senators at that — the power to insist on judges who suit their own ideology.
Myth No. 4: The current filibuster is about "free speech."
Fact: Historically, the filibuster has given senators in the minority a chance to speak on the Senate floor before the majority rushes to pass a bill. But the current filibuster is not about the right to speak out. It is about blocking judges. These nominees have been pending for months — some for years. There has been, and remains, ample time to speak about them. The majority welcomes free speech and free debate — followed by a free vote.
Myth No. 5: The filibuster protects "the right of the minority" to veto nominees.
Fact: The Constitution requires two-thirds vote for certain things. Appointing judges is not one of them. So the basic principle of democracy applies: The majority decides. The filibuster of judicial nominees turns majority rule on its head, because 41of 100 senators can keep a judge off the bench without ever even voting.
A liberal minority needs federal judges to advance their agenda — allowing child pornography as free speech, mandating same-sex marriage, removing "under God" from the Pledge of Allegiance, banning school prayer and preventing the death penalty for murderers and terrorists — because they can't win these issues at the ballot box. Mr. Bush promised to nominate judges who will apply the law as written and stay out of politics. The recent Ayres survey shows 67 percent of voters agree that "we should take politics out of the courts and out of the confirmation process." A full 61 percent of Democrats agree with this statement, as well as 73 percent of Independents and 69 percent of Republicans.
The American people want senators to do the job our tax dollars pay them to do. Senators who fail to do their jobs — either by failing to show up for their committee meetings, by voting against restoring the Senate tradition of up-or-down votes for judges, or by halting the work of the federal government — might find themselves out of work when they really need the consent of the governed: at their next election.
Wendy E. Long is counsel to the Judicial Confirmation Network, a former Clerk to Justice Clarence Thomas and former press secretary to former Sens. Gordon Humphrey and Bill Armstrong.Copyright © 2005 News World Communications, Inc. All rights reserved.
Copyright © 2005 News World Communications, Inc.
The Constitutional Option: What's Really at Stake
by David Limbaugh
Posted Apr 22, 2005The best way to understand the brouhaha over the Republican plan to invoke the constitutional option to prohibit Senate filibusters to thwart judicial nominations is that Democrats are very poor losers, but Republicans are even poorer winners -- so far.
The reason we're even talking about a so-called "nuclear option" is that Democrat leaders remain in denial about their consistent drubbing at the ballot box. They won't accept that the public has rejected their message.
They are acting like the ornery little brother who hits his older brother, and when big brother merely threatens to hit back, he goes running to mommy, telling her his big bad older brother hit him first.
This whole flap is not that complicated. Republicans won the presidential and congressional elections. The Republican president is therefore entitled under the Constitution to appoint judges, with the Senate having the right to pass on the competency and character of the nominees.
The Senate does not have coequal authority with the president on judicial appointments as the advice-and-consent function was not intended to confer veto power on the Senate.
While Democrats are doing most of the bellyaching, they drew first blood in this skirmish by changing the ground rules in reversing nearly half a century of precedent by filibustering certain judicial nominations.
In response, Republicans have threatened that unless the Democrats quit breaking the rules, they will implement a rule change to effect a restoration of the status quo such that judicial nominees can be confirmed on a simple majority vote of the Senate.
Democrats, being the consummate spinmeisters they are, have characterized this "threat" to restore the status quo as a draconian move by the Republicans. But let's not forget that they are the ones who went "nuclear" in the first place by departing from the established practice of not filibustering judicial nominations. But like the little brother, they're trying to paint the Republicans as the wrongdoers.
With all the hype over procedural squabbles we're missing a more important point. In the end, this isn't just a struggle over Senate rules or which side is being more gentlemanly. What is at stake in this ongoing fight over judicial nominations is nothing less than the integrity of the Constitution, the independence of the judiciary, the separation of powers, and ultimately, the preservation of popular sovereignty.
Democrats can talk until they're blue in the face about Republicans tinkering with the system by invoking a Senate rule change. But in the first place, it is just that: a Senate rule change, and as I said, the change is only necessary to correct the Democrats' abuses and usurpations of power.
The reason Democrats are filibustering judicial nominees is that they refuse to play by the rules and allow the duly elected president and Congress to exercise their constitutional authority. No one's asking them to lie down or forfeit their minority rights, merely not to break the rules to obstruct the majority.
Under our system, the people elect the president and Congress, and those two branches set policy for the government. The judiciary was never intended to be a policy-making branch. Yet Democrats, for decades have been willfully violating the Constitution by using the courts to make laws and set policy -- often in derogation of the policies already set by the other two political branches.
In an astonishing demonstration of chutzpah, Democrats have been complaining about Republicans threatening the independence of the judiciary when Republicans say they want to take action to force the judiciary to revert to its non-political, independent role. Democrats haven't respected the independence of the judiciary since before the Warren court era of judicial hyper-activism.
It is laughable that they demand an independent judiciary when what they really want is a judiciary they handpick for the express purpose of implementing policy they can't otherwise achieve through the political branches of government. They see the judiciary as both a high-powered vehicle to thwart the democratic will of the people and as a weapon for their side to use in the Culture War. They view the judiciary as a catalyst for social change, an instrument to supplant traditional values with secular relativism, and all the hedonism and licentiousness it entails.
That's why they seek to divert attention from the real issues involved in the judicial nominations debate and demonize the messengers, the Republicans, as pawns of the evil Christian Right. If unenlightened Christians are advocating the constitutional option, it must be a sinister ploy indeed.
Thank God for these "sinister" Christians, who at this point are the main ones holding the feckless Senate majority accountable -- feckless, that is, unless they muster the backbone to invoke the constitutional option.Copyright © 2004 HUMAN EVENTS. All Rights Reserved.
