Before a single justice on the Supreme Court has begun muttering about a nice condo in Florida, a preemptive war is under way in the U.S. Senate. Democrats have been abusing their...
Before a single justice on the Supreme Court has begun muttering about a nice condo in Florida, a preemptive war is under way in the U.S. Senate. Democrats have been abusing their advise-and-consent role by stonewalling President Bush’s judicial nominees. GOPers are mad as heck and not going to tolerate it anymore.
But why not? If the last election proves anything, it’s that Senate Democrats only discredit themselves by relying on parliamentary tricks to win their points.
At the center of the battle is the filibuster, which allows a minority to prevent action on a bill or nomination by requiring the majority get 60 votes to end debate on the question.
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By tradition, the filibuster has played a balancing role, making it hard for a Senate majority to run roughshod over an impassioned (typically, regional) minority. But Democrats have cheapened the filibuster, using it to block judges and win applause from Tinseltown liberals and “progressive” interest groups. Ten times in the past four years, appeals-court nominees were denied a vote despite, in some cases, clear bipartisan support to confirm them.
But the action wasn’t without cost to the Democrats. The “Group of 10”-banished nominees gained a sort of political martyrdom while the saboteurs lost seats in the Senate, including the defrocking of former Minority Leader Tom Daschle.
Democrats, in short, may have won a few battles, but they have clearly been losing the war. Yet, now Senate Majority Leader Bill Frist is acting like a panicked man with his finger on the button, threatening a “nuclear option” against Democratic filibuster tactics. That phrase is the new Beltway shorthand for invoking the power of Vice President Dick Cheney (as the Senate presiding officer) to declare the filibuster against judicial nominations unconstitutional, a ruling that would take only 51 Senate votes to uphold.
Aspiring filibusterers on the left side of the aisle say any such attempt would ricochet through the Congress’ agenda on other issues. Incoming Democratic leader Harry Reid has eloquently promised to “screw things up” while New York Sen. Chuck Schumer says it would make the Senate look like “a banana republic” and specifically threatened blockades on Social Security and tax reform.
But so what? Republicans don’t need to find out if Democrats are bluffing. In fact, they’d be foolish to try: Who needs a nuclear option when the Democrats are so willing to make their own radioactive puddle and roll around in it?
The problem isn’t the filibuster, after all, but its everyday use as a battering ram. Former GOP Veep candidate Jack Kemp observed recently that filibusters have become so prevalent because they no longer cost the Congress much rules now allow filibusters to continue while other business is conducted simultaneously. It is, he says, “obstructionism on the cheap.”
Let’s examine what’s really going on here. Democrats have totally lost power to set the nation’s agenda in the White House and Congress. As they’ve done so, they and liberal groups have become desperate to legislate through the courts. Hence, their keenness to block conservative nominees on key circuits and preserve the power of Carter and Clinton appointees to shape legal rulings.
That’s why Democrats care so much. Seeing their agenda rejected by voters, they now increasingly depend on activist judges to carry out their agenda on issues like gay marriage, the environment and the “progressive” downgrading of property rights. The leftist group People for the American Way hyperventilates that a conservative Bush appointee would be “staggeringly damaging” and herald a return to dread federalism.
Of course, a conservative nominee to fill the vacancy created by the retirement of a conservative justice like William Rehnquist would change exactly nothing. But the specter of a new “right wing” justice can guarantee gallons of fund-raising ink devoted to his defeat at any cost.
The filibuster’s magic when applied to judicial nominees is that, through extended blathering, it raises the standard for confirmation to 60 votes, from 51. At the moment, Republicans control 55 Senate seats, but several Democrats will be up for re-election in 2006. If the next two years are spent in a riot of heel-dragging, Republicans may just end up with the 60 votes they need for cloture two years from now.
The election showed that voters have remarkable aptitude to sift out the important lessons at the ballot box. They may not have followed every Beltway skirmish over judges, but they certainly understood the idea of Democratic obstructionism against a popular president. The filibuster has traditionally been a useful and legitimate tool of the minority. Democrats’ abuse of it is seen by voters as one more reason the Democratic Party is not yet fit to govern again.
Collin Levey writes Fridays for editorial pages of The Times. E-mail her at firstname.lastname@example.org