WASHINGTON -- Four years ago this week, President Bush nominated Texas Supreme Court Justice Priscilla Owen to the federal bench. Four years later, she and six other circuit court nominees remain unconfirmed and unvoted upon because of Democratic filibusters.
This technique is defended by Democrats as traditional and rooted in history. What a fraud. The only example that comes close is Lyndon Johnson's nomination in 1968 of (sitting) Supreme Court Justice Abe Fortas to be chief justice. But this case is muddied by the fact that (a) Fortas was subject to conflict of interest and financial impropriety allegations, (b) he did not appear to have the votes anyway, and (c) the case involved elevation on the court, not appointment to the court.
Even if we concede Fortas, that is one successful filibuster, 37 years ago, in two centuries of American history. In 2000, a small number of Republicans tried to filibuster two Clinton judicial nominees, but were defeated in that attempt not only by Democrats, but by Republicans voting roughly 3-1 for cloture.
There has certainly never been a successful filibuster in the case of a judicial nominee who clearly had the approval of a majority of the Senate. And there has surely never been a campaign like the one undertaken by the Democrats since 2001 to systematically deny judicial appointment by means of the filibuster.
Two hundred years of tradition have been radically and unilaterally changed by the minority. Why? The reason is obvious. Democrats have not had a very good run recently in the popularly elected branches. Since choosing the wrong side of the counterculture wars of the 1960s, they have won only three of the last 10 presidential elections. A decade ago they lost control of the House for the first time in 40 years, and now have lost all the elected branches. They are in a panic that they will lose their one remaining ability to legislate -- through the courts.
And this they have done with great success, legislating by judicial fiat everything from abortion to gay marriage to religion in the public square. They want to maintain that commanding height of the culture and are not about to let something like presidential prerogative and two centuries of Senate history stand in their way.
Charles Krauthammer is a 1987 Pulitzer Prize winner, 1984 National Magazine Award winner, and a columnist for The Washington Post since 1985.
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