Making up my mind on important policy issues has never been difficult -- until now. I can't decide whether I am for or against Republican efforts to change the rules governing how judicial nominations are brought to the floor of the U.S. Senate for a vote. There is no question that Democrats have been obstructionist in blocking President Bush's nominees, but I am still uncomfortable with the way the GOP is trying to solve this problem.
In unprecedented fashion, the Democrats have been able to hold up one-third of the president's nominees for Appeals Court vacancies. Some of these nominees have been languishing for years, despite impeccable credentials. President Bush nominated Patricia Owens to the Fifth Circuit in 2001, and she has yet to get a vote by the Senate. Miguel Estrada, nominated to the D.C. Circuit, became so discouraged after more than two years of waiting for a vote that he asked the president to withdraw his nomination. The Democrats have succeeded in blocking these nominations by abusing Senate rules on debate.
Until 1917, the Senate allowed for unlimited debate, which allowed a single-minded senator or group of senators to kill bills (and occasionally, nominations) they opposed by simply talking them to death. According to the official Senate website, senators then put in place some restrictions limiting debate at the suggestion of President Woodrow Wilson, allowing a two-thirds vote -- or 67 senators -- to invoke cloture to shut off debate.
In 1975, senators once again modified their own rules, reducing to 60 senators the number needed to force a vote. At the time, it was mostly Democrats, who were in the majority, who favored limits on minority rights. As Sen. Edward Kennedy said at the time, "Again and again in recent years, the filibuster has been the shame of the Senate and the last resort of special interest groups. Too often, it has enabled a small minority of the Senate to prevent a strong majority from working its will and serving the public interest."
But the most significant change in filibuster rules came later, when, by gentlemen's agreement, the Senate leadership decided that the mere threat of a filibuster would be enough to stop a vote. Instead of forcing obstructionist senators to take to the floor for hours on end, the Senate began operating under a two-track system that allows legislation and other business to move through the Senate whenever a filibuster is threatened. Instead of pulling in the cots and forcing senators to stay up all night reading recipes into the Congressional record, 41 senators simply indicate their unwillingness to allow a vote, and the matter is put aside -- which is the process Democrats have used to derail Bush's judicial nominees.
If the Republicans want to force a vote on the president's nominees, they don't have to change the filibuster rules permanently, or even adopt the so-called "nuclear option" of allowing Vice President Cheney, acting in his Constitutional role as presiding officer of the Senate, to rule that executive matters -- specifically judicial nominations -- are not subject to a cloture vote. Why not just insist that senators who want to filibuster actually do so, bringing work in the Senate to a halt?
If the Democrats really believe that stopping someone like Janice Rogers Brown from becoming an appeals court justice is worth grinding Congress to a stalemate, let them. They'll need more time than a filibuster provides to convince most Americans -- who can now watch the talkathon on TV, thanks to C-SPAN -- that an African-American woman who was re-elected to the California Supreme Court in 1998 with 76 percent of the vote is an "extremist." Not that they won't try. Indeed the scurrilous campaign Democrats have waged against President Bush's nominees has been sickening -- but why do Republicans want to keep Americans from a chance to witness Democrat perfidy in prime time?
The more I think about it, the more I am convinced that Republicans would make a mistake getting rid of the filibuster. Republicans won't be in the majority forever, and they may rue the day when they deprived themselves of the ability to block a candidate to some future Supreme Court. Worse, they may end up making themselves look like the heavies instead of forcing the Democrats to take center stage as the real fanatics. Let the filibuster stay -- and force the Democrats to actually use it.