Nuclear? No, Restoration

Posted: May 16, 2005 12:00 AM

 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.

     Hence the filibuster strategy. Feeling they have a weak hand, however, they have been offering deals. In the latest, as reported in Roll Call, Democrats would allow some circuit court nominees to go through, deny at least three others, and promise not to filibuster a Supreme Court nominee as long as there are no ``extreme circumstances.''

     But of course Democrats believe anybody who, say, opposes affirmative action on principle is extreme. As is anyone who believes (as, for example, I and many others do) that abortion should remain legal, but that Roe v. Wade is a travesty -- an extreme case of judicial arrogance and constitutional invention -- worthy of repeal.

     If Republicans accept this kind of deal, they are fools. They have a perfectly constitutional, perfectly reasonable case for demanding an up-or-down vote on judicial nominees, and they should not be throwing it away for a mess of porridge and fuzzy future promises.

     Senate Majority Leader Bill Frist seems intent on passing a procedural ruling to prevent judicial filibusters. Democrats have won the semantic war by getting this branded ``the nuclear option,'' a colorful and deliberately inflammatory term (although Republican Trent Lott, ever helpful, appears to have originated the term). The semantic device reminds me of the slogan of the nuclear freeze campaign of the early 1980s: ``Because nobody wants a nuclear war.'' (Except Reagan, of course.)

     Democrats are calling Frist's maneuver an assault on the very essence of the Senate, a body distinguished by its insistence on tradition, custom and unwritten rules.

     This claim is a comical inversion of the facts. One of the great traditions, customs and unwritten rules of the Senate is that you do not filibuster judicial nominees. You certainly do not filibuster judicial nominees who would otherwise win an up-or-down vote. And you surely do not filibuster judicial nominees in a systematic campaign to deny a president and a majority of the Senate their choice of judges. That is historically unprecedented.

     The Democrats have unilaterally shattered one of the longest running traditions in parliamentary history worldwide. They are not to be rewarded with a deal. They must either stop or be stopped by a simple change of Senate procedure that would do nothing more than take a 200-year-old unwritten rule and make it written.

     What the Democrats have done is radical. What Frist is proposing is a restoration.