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May 23, 2005
Right-wing leaders in the Senate and the White House have reached the point of no return on judicial nominations. Barring some last minute intervention by Senate moderates, Vice President Cheney will parade into Congress tomorrow to finally dispose of minority rights in the Senate by abolishing the judicial filibuster. Their primary argument in defense of tossing out 200-plus years of Senate rules and tradition? The filibuster is unconstitutional. The transparent hypocrisy and intellectual dishonesty of this claim is not hard to miss:
- The right-wing politicians leading the charge against the filibuster today were the same ones who defended the constitutional role of the filibuster against President Clinton’s nominees. If judicial filibusters are unconstitutional today, they have always been unconstitutional. Yet, Sen. Rick Santorum (R-PA) – who supports the “nuclear option” – argued on the Senate floor last week "those in 2003 had the right to filibuster judges. I had the right during the Clinton administration to filibuster his appointments." Majority Leader Bill Frist and Majority Whip Mitch McConnell—leading proponents of the “nuclear option”—personally invoked the filibuster to indefinitely block Clinton nominee, Judge Richard Paez, from reaching the bench.
- Right-wing congressional leaders blocked 67 of President Clinton’s nominees without batting an eye about the constitutional need for an “up-or-down” vote. If judicial filibusters are unconstitutional, there would have to be a provision of the U.S. Constitution that guarantees up-or-down votes on judicial nominations. Yet, last week, when Sen. Robert Byrd asked Frist to point him to the language in the constitution that guarantees such a vote, Frist replied "the language is not there." Furthermore, if judicial filibusters are unconstitutional, then legislative filibusters are too. Yet, the proponents of the “nuclear option” claim they would preserve the legislative filibuster even though there is no principled way to distinguish between the two.
- The filibuster is a legitimate means by which the Senate exercises its rightful role in protecting the independence and impartiality of America’s courts. More than 200 of President Bush’s judicial nominees were approved with bipartisan support during his first term, a 95 percent success rate. The president chose to re-nominate the most extreme jurists—judges like Janice Rogers Brown who wants to take the country back to its pre-1937 constitutional state when employees and minorities enjoyed few if any legal protections—and wonders why the minority won’t go along. The Founding Fathers certainly didn’t intend for the U.S. Senate to act as a rubber stamp for the ideological agenda of the executive branch.
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