The routine filibuster of judicial nominees is being portrayed by its defenders as one of the most hallowed traditions of American governance, up there with Robert?s Rules of Order, congressional committee hearings and Rose Garden bill-signing ceremonies. But this tradition dates from only 2003, when Democrats found themselves in the minority in the Senate and desperate to block Bush judicial nominees.
The judicial filibuster isn?t a tradition, but an innovation; not a function of checks and balances, but a perversion of them; not an outgrowth of the Constitution, but at best irrelevant to it.
The Senate has two broad traditions. It has respected the filibuster, which allows a minority of 41 senators to extend debate indefinitely and block a vote on a bill. But it has also brought ? in its ?advice and consent? role under the Constitution ? a president?s nominees to the floor for an up-or-down vote without filibusters. The Democrats? new tack of filibustering judicial nominees has created a clash of traditions: Either the traditional respect for the filibuster or advice and consent as traditionally practiced must give way.
Throughout the history of the Senate filibuster, it has usually applied to legislative business. The theory is that if the Senate wants to make its internal business more difficult by requiring 60 votes, so be it. But the president?s nominations are a different matter. They involve another branch of government. With limited exceptions, senators have avoided filibustering them because it was thought that the Senate?s advice-and-consent function compels it simply to approve or disapprove a nominee.
The Democrats have broken with this tradition. Through routine party-line filibusters that bottle up judicial nominees indefinitely, they are changing the Senate?s advice-and-consent function. They have created an entirely new minority veto for presidential nominees who otherwise have the votes to be approved by the Senate. This is not how the constitutional scheme was supposed to work, or has ever worked in the past. And no one has ever claimed otherwise ? until now.
As Republican Sen. Orrin Hatch has pointed out, there have been 109 Congresses in the history of the United States. The first 107 of them didn?t routinely filibuster judicial nominees. During the contentious fight over Clarence Thomas?s nomination to the Supreme Court in 1991, Democrats who were harshly opposed to him still refused to filibuster his nomination, even though they would have had the votes to do so. Democratic Sen. Patrick Leahy called a filibuster against Thomas ?nonsense? and a ?crazy idea,? declaring himself ?totally opposed to a filibuster.?
Democrats point to a filibuster of Lyndon Baines Johnson?s 1968 attempt to elevate Abe Fortas from an associate justice to chief justice of the Supreme Court as a precedent. But it was different in kind from today?s filibusters. It was bipartisan. Twenty-four Republicans and 19 Democrats voted against ending the filibuster. Fortas almost certainly didn?t have the support to pass on an up-or-down vote in the Senate. Hurt by ethics charges, he soon withdrew his nomination, and ended up resigning from the court. The case was truly exceptional.
One Democrat who worried it wouldn?t be was Sen. Mike Mansfield. He feared that a minority of senators would ?frustrate the Senate?s constitutional obligation on the question of nominations?: ?In the past the Senate has discussed, debated, at times agonized, but always it has voted on the merits. No senator or group of senators has ever usurped that constitutional prerogative. This unbroken tradition in my opinion merely reflects on the part of the Senate the distinction heretofore recognized between its constitutional responsibility to confirm or reject a nominee and its role in the enactment of a new and far-reaching legislative proposals.?
Mansfield?s fears were unfounded ? at least for 35 years. Now they have been realized at the hands of an obstructionist Senate Democratic minority. Senate Majority Leader Bill Frist should take away their ability to mount unprecedented judicial filibusters through the so-called nuclear option, then sleep the sleep of an utterly justified defender of Senate tradition.