The agreement brokered this week by Sen. John McCain, R-Ariz., and six other Republicans to preserve the power of 41 Senate Democrats to veto Republican judicial nominees was a one-sided deal, preserving a one-party vehicle that Democrats will use to keep driving America on what they hope is a one-way trip to the left.
It was a one-sided deal because Senate Democrats retain the key power they need to control the direction of the courts, while Senate Republicans retain their key deficiency: Democrats can still stop a Republican judicial nominee with 41 votes. Republicans still cannot confirm one with 59.
The judicial filibuster is a one-party vehicle because Republicans can be counted on to never use it. The Democrats, on the other hand, have already demonstrated their will to use it repeatedly and -- thanks to McCain & Co. -- will now use it again, most likely to try to block any Supreme Court nominee they fear could shift the court in a conservative direction.
It is true that in October 1968, one month before a presidential election, some Republican senators used a filibuster to block lame-duck President Lyndon Johnson's attempt to elevate the ethically challenged Abe Fortas from associate justice to chief justice. But that was not a strictly partisan effort. Nineteen Democrats voted to block cloture on Fortas, who later resigned from the court.
Not one Republican has voted to block cloture on any of President Bush's 10 appellate court nominees who were filibustered by Democrats in the past two years.
Appearing on MSNBC's "Hardball last" month, McCain argued that Republicans should retain the judicial filibuster because they might want to use it themselves someday.
"I say to my conservative friends, some day there will be a liberal Democrat president and a liberal Democrat Congress," said McCain. "And do we want a bunch of liberal judges approved by the Senate of the United States with 51 votes if the Democrats are in the majority?"
But that "someday" already happened. In the early 1990s, we had a liberal Democratic president and a liberal Democratic Senate. When President Clinton nominated former ACLU lawyer Ruth Bader Ginsburg and former Ted Kennedy aide Stephen Breyer to the Supreme Court, both won the eager support of most Senate Republicans. McCain meekly voted for both.
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