November 13, 2003

November 13, 2003 | Commentary on Legal Issues

Obstruct and Delay

Here we go again. Or, rather, here we don't go again.

On Nov. 6, the Senate Judiciary committee approved President Bush's nomination of Janice Rogers Brown to sit on the Court of Appeals for the District of Columbia. The vote was close-10 to 9-and broke exactly along party lines. Still, as they say in sports, a win's a win. So the next stop for Brown should be a full Senate vote, right?

Don't count on it.

Some Democratic senators, including Dianne Feinstein from Brown's home state, have made it clear that they oppose Brown's nomination. They're expected to filibuster, which means they will refuse to allow a vote that would either put Brown on the court or send her home to California. Instead, she'll go into suspended animation, unable to plan her next move and unsure where she'll be living or what her next job will be.

Brown would be in good company. Democrats are already filibustering the nominations of Charles Pickering, Priscilla Owen and William Pryor. Last month, after waiting more than two years for a vote, nominee Miguel Estrada withdrew himself from consideration. Who can blame him for finally deciding to give up his bid and get on with his life?

Imagine: Like Brown, Estrada was offered a wonderful new job, near the very top of his profession. He answered 178 questions from Senators. The transcript of his testimony before the judiciary committee filled 83 pages. Still, his opponents insisted that he hadn't provided enough information.

If he had been approved, Estrada would have been the first Hispanic on the D.C. Court of Appeals. As it is, he'll simply be a sad footnote: the first-but not the last-Court of Appeals nominee ever filibustered in the Senate.

Any filibuster is an unusual move for the "world's greatest deliberative body," as senators like to call their house of Congress. And it's anti-democratic, as it allows a minority to indefinitely block the will of the majority.

That was shown as recently as last month, when the Senate voted 54-43 to end debate and hold an up-or-down vote on Pickering's nomination. In most elections, 54-43 would be considered a landslide. Not in the Senate, where a super-majority of 60 votes is needed to break a filibuster.

The Senate has thus become a judicial bottleneck. But it shouldn't be. The Constitution gives it the power to "advise and consent" to the president's judicial nominees. Yet what's happening in these cases is actually "obstruct and delay," with a minority refusing to let the full Senate provide its consent.

What's especially ironic is that Democrats have repeatedly described Brown, Estrada, Pickering, Owen and Pryor as being "out of the mainstream." If that's true, they should have no problem convincing a majority of their colleagues to vote against the nominations. They ought to be eager for the votes that would expose these extremists. So what are they afraid of?

This is a problem that will only get worse unless it's fixed. As President Bush warned back in March, senators must hold "timely up-or-down votes on judicial nominations both now and in the future, no matter who is president or which party controls the Senate. This is the only way to ensure our judiciary works and that good people remain willing to be nominated to the federal bench." That holds true for these nominees, and will also be true for any nominees who come before future Congresses.

There's an easy solution to this standoff, of course. Give all the filibustered nominees a simple vote, yes or no. Put them on the bench, or allow them to go home. Then we'll know who's truly "out of the mainstream."

Ed Feulner is president of The Heritage Foundation (heritage.org), a Washington-based public policy research institute.

About the Author

Edwin J. Feulner, Ph.D. Founder, Chairman of the Asian Studies Center, and Chung Ju-yung Fellow
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