May 6, 2005
By Edwin J. Feulner, Ph.D.
Some lawmakers may not realize it, but there's a fine line
between raising legitimate objections and simply obstructing
In the Senate, a minority of senators is using the filibuster as a
tool to prevent a vote on judicial nominees they dislike. We'll
learn soon if the Senate's rules really allow that.
Some obstructionists now claim that they do, even though they
strongly disputed that notion just a few years ago. It's worth
wondering why they're flip-flopping. Perhaps it's because the abuse
of those rules may be the only way to keep activist judges in
control of the nation's most important courts.
The filibuster has deep roots. And no matter what happens with
nominations, senators still can filibuster almost any legislation.
The filibuster is an important device to force compromise on
legislation, and Congress has the sole power to pass and present
legislation to the president. Not so with judicial
For most of the Senate's history, it was crystal clear that the
filibuster could not be used for judicial-confirmation debates. A
change in the filibuster language in 1949, however, made it
unclear. Still, no filibuster ever prevented an up-or-down vote on
a judicial nominee before 2003. Never. The Senate majority wouldn't
tolerate that abuse of its rules.
Once floor action began, there was never more than a few days of
debate on any judicial nominee, and the nominee always received a
vote unless the president decided he didn't have a majority and
withdrew the nomination. After all, you can't amend a judicial
nominee; you can only vote up or down. Or so most senators assumed
prior to 2003.
That year, obstructionists in the Senate announced a new plan to
block any nominee to the Appeals Court they believed wouldn't
uphold their activist rulings. The obstructionists concentrated on
the most impressive nominees for the most important courts. Almost
all are minorities, women or people with orthodox religious
beliefs, including Miguel Estrada, Texas Supreme Court Justice
Priscilla Owen, California Supreme Court Justice Janice Rogers
Brown, Judge Carolyn Kuhl and Claude Allen.
All of the President's judicial nominees passed the American Bar
Association test, and the ABA is far from being conservative. All
are highly qualified and received bipartisan support -- until a
handful of special-interest groups insisted that they be
Finally, an unprecedented and ugly fight that has long prevented a
vote on nominees is about to end, in part because the American
people voted in 2004 to kick out the lead obstructionist, former
Minority Leader Tom Daschle. This is the test to see if elections
Majority Leader Bill Frist recently offered a generous compromise
that would allow up to 100 hours of debate on each judicial
nominee. That's longer than any nominee has ever been debated. If
Frist's offer is rejected, the Senate is expected to clarify its
rules in early May and vote that its legislative filibuster rule
does not permit endless minority filibusters to block judicial
This would allow all nominees to get an up-or-down vote. Liberals
call it the "nuclear option" and have vowed to use procedural
measures to bring all Senate business to a grinding halt if they
don't get their way. That seems like more of the obstructionist
tactics that cost Daschle his seat. Although they are now
backpedaling on that threat, liberals promise to throw other,
unspecified tantrums if they lose the vote.
Responsible adults don't reward tantrums. In fact, ending the
filibuster of qualified judges will help solve an even greater
problem in our country today: the over-politicization of the
Judges once were seen as impartial arbiters of truth and justice
and the rule of law. But these days, they're more often ruling "on
such hot-button issues as abortion and same-sex marriage," as CNN
reporter Suzanne Malveaux put it. Perhaps that explains why their
nominations are now seen as a political football and are treated
like controversial legislation.
We must return to original constitutional principles. Legislators
should make the laws, and judges should interpret them fairly and
honestly. These simple solutions would protect our democracy, and
Feulner is president of the Heritage
Some lawmakers may not realize it, but there's a fine line between raising legitimate objections and simply obstructing business.
Edwin J. Feulner, Ph.D.
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