The Senate should go nuclear

Posted: May 09, 2005 12:00 AM

The use of the Senate filibuster to block floor votes on judicial nominees, as Democrats have been doing, is a distortion of good government in the United States. I fully endorse Senate Republican leader Bill Frist's pushing the "nuclear" button to change Senate rules so this can no longer be done.

Even if you buy the argument that the filibuster is an important procedure to protect minority interests in the Senate, this still should not apply to judicial nominations.


Because the nominating process is fundamentally different from the legislative process.

The checks and balances and institutional bias toward deliberation in government is critical in our free country. Although, as result, we rarely get legislation that makes anyone completely happy, this is the price of freedom and a participatory democracy. We have a process of give-and-take and compromise.

But nominees up for confirmation cannot be put into the same kind of sausage-making machine that produces legislation. A controversial bill can be debated, amended, tweaked and, yes, filibustered. There always remains the opportunity for another nip and tuck. If the president doesn't like what ultimately gets sent to him, he can veto it and then Congress still gets another vote on the vetoed bill.

Unlike legislation, we can't take human beings apart and then put them back together to create a new product that will pass the consensus test. Either you take them as they are or reject them. Nominations, then, that pass out of committee should be submitted for a simple up-or-down floor vote.

Furthermore, legislative initiatives are capricious. We don't have to have new bills. However, we do have to have the federal bench staffed. The president has an obligation to nominate judges and the Senate has an obligation to vote on the nominees.

It seems pretty clear to me that the point of the process of advice and consent in the Senate, which defines its review of the president's nominees, is to ensure that we have qualified candidates. It should not be about having senators insert personal political opinions regarding a nominee's views on particular subject matter.

By definition, because it is the responsibility of the president to nominate judges, and because the people of the nation democratically elect the president, it is only reasonable to expect the judges that get nominated to reflect the worldview of our president.

The American people, last November, elected a Republican president and a Republican Senate. If we don't believe that the American people know what they are doing when they go to the polls, our way of life is in bad shape. We have to assume that a Republican-dominated federal government reflects a conservatively oriented electorate. It is only logical to expect that judicial nominees will reflect this orientation and we can only conclude that this is the result of a healthy democracy. Procedural games that undermine this process reflect a sick democracy.

The Janice Rogers Brown nomination is a good case in point.

There is no conceivable argument that can be made that she is not an eminently qualified candidate for a seat on a federal court. She is an associate justice on the California Supreme Court and was re-elected to this position by a compelling 76 percent of the vote. Her background before this position is stellar, including stints as a law-school professor, legal-affairs secretary to then-California Gov. Pete Wilson, an associate justice on a California district court of appeals, and a practicing attorney.

On a personal note, Brown is a black woman who is a role model for both blacks as well as whites. Her life is proof that achievement in America is the result of character and hard work. She grew up in rural Alabama, the daughter of sharecroppers. As a single mother, she worked her way through Cal State and UCLA law school.

Don't the Democrats allege to be the party looking out for the interests of the common folks? How in the world does this claim wash with Democratic opposition to Brown's nomination to the U.S. Circuit Court of Appeals for the District of Columbia?

The answer is that Democrats are not for folks of humble origins making it in America if those folks happen to turn out to be conservatives, as Brown is.