To hear the rhetoric, one would think that President Bush has been blocked at every turn in getting his judicial nominees confirmed to federal court positions. Actually, the Senate has approved 205 of his district and appellate nominees. Of the president's 52 appeals-court nominees, 34 have been confirmed, but the Democrats are balking at 10.
Because of those 10, many Republicans in the Senate -- egged on by some conservative special interest groups -- have been talking about a provocative change in the Senate rules to disallow a filibuster as a way of blocking a vote on a judicial nominee. Democrats refer to this as the nuclear option; some Republicans defend it as the constitutional option, while GOP wags have begun calling it the Byrd option, a reference to five instances in the 1970s and 1980s when Sen. Robert Byrd, D.-W.Va., used parliamentary maneuvers to block filibusters with less than the required 60 votes.
While it is true that the Democrats are prepared to use the filibuster to block 10 of President Bush's nominees, those 10 represent fewer than 5 percent of his judicial nominations. During the six years that the Republicans controlled the Senate, they blocked 60 of President Bill Clinton's judicial nominees. In many cases, those nominees were blocked by a single senator.
The way it was
Judiciary Committee Chairman Orin Hatch, R-Utah, honored a Senate tradition that allowed a single senator from the nominee's home state to block the nominee from even getting a hearing. After President Bush was elected, that rule was changed to require both senators from a nominee's home state to block action, and after Michigan's two Democratic senators blocked a nominee, the tradition fell by the wayside.
In the last six years of President Clinton's term, Republicans confirmed only 71 percent of his nominees. Against that backdrop, Republican senators and the White House should have enough integrity not to whine about the president's success rate, which exceeds 95 percent.
That's not a bad batting average, considering that President Bush came into office announcing that he intended to send only nominees who met his ideological test to the Senate and that he was ending the pre-nomination peer review that the American Bar Association had conducted for decades.
But there are better reasons for the Republicans to run, not walk, away from a movement that would spell the beginning of the end of the filibuster.
Former Senate Majority Leader Bob Dole, R-Kan., mentioned one during a recent interview on National Public Radio's "Morning Edition" -- history. "You want to think down the road," Dole suggested. "The Senate's going to change. It's not always going to be Republican. It changes back and forth. History shows that."
Even a couple of conservative organizations have begun sounding that theme. They recognize that if the filibuster can be abandoned for judicial nominees today, it can be abandoned in other contexts tomorrow.
Reason for being
A filibuster is technically an unlimited debate, and requires 60 votes from the 100-member Senate to stop (it used to be 67 votes). It allows a strongly committed minority in the Senate to stand up for what they believe in, and over its long history has been used for good and not-so-good. Its existence is consistent with the Senate's role as the legislative body that can apply the brakes on a run-away government. Each state, regardless of size, gets two senators, providing a disproportionate voice for small states. Senators face election only every six years, making them less susceptible to the political passions of the moment.
The checks and balances that the Senate can provide, should not be flushed away because one president is only getting 95 percent of what he wants.
If the filibuster is appropriate in any political disagreement, judicial confirmations would be one of the best uses.
The president is nominating men and women to lifetime appointments to the federal bench. Most of these nominees will serve for decades, interpreting the law of the land for all citizens, Democrats and Republicans. Some of President Bush's nominees have been clearly outside the philosophical mainstream (as some of President Clinton's nominees who never got hearings may have been). Some of the nominees were not forthcoming when questioned about their philosophy during hearings.
If coy, fringe nominees never get to wear a federal judge's robes because of a filibuster, that is hardly an indictment of the Senate. It's more of a testament to the beauty and balance of the system.