May 6, 2005

May 6, 2005 | Commentary on

Filibuster Follies

Some lawmakers may not realize it, but there's a fine line between raising legitimate objections and simply obstructing business.

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 appointments.

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 stopped.

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 really matter.

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 nominees.

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 judicial-nominations process.

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 our republic.

Ed Feulner is president of the Heritage Foundation.

About the Author

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