Since being elected to the U.S. Senate I have been urging my colleagues to permanently end the unprecedented filibustering of President Bush’s judicial nominees, as I pledged to do during my campaign. In the very near future, actions by some of the Senate’s chief obstructionists will likely force Senate Majority Leader Bill Frist (R-TN) to formally restore long-standing Constitutional and Senate traditions regulating judicial confirmations.
For the first 214 years of our nation’s history, the president has been able to nominate judges and expect that those nominees would receive the courtesy of a straight up-or-down vote on the floor of the Senate. During this time, the Senate operated within its Constitutional “advice and consent” role. The president would nominate judges of his choice with advice from the Senate. The Senate would then either consent and confirm that nominee by a majority vote or reject that nominee.
In 2003, however, obstructionist senators decided the system that was designed by our founders and practiced for 214 years was no longer fair. If the minority didn’t like the judicial philosophy of one of President Bush’s nominees they concluded it was their right to deny them the courtesy of an up or down vote through a filibuster. Instead of needing 51 votes to be confirmed, the minority unilaterally declared that judges who failed their liberal litmus test would need 60 votes to break their filibuster. Never before in American history has a judicial nominee with clear majority support been denied an up-or-down vote.
In order to defend this unprecedented partisan power grab, the minority is using a series of profoundly hypocritical arguments that rely on revisionist history.
First, nine senators, who are among the minority’s most strident defenders of the judicial filibuster, voted in 1995 to ban the use of all filibusters – against legislation or judges.
Second, the minority often speaks as if the right to filibuster judges was at the forefront of James Madison’s mind when he helped draft the Constitution. However, the concept of the filibuster is not even mentioned in the Constitution. What is in the Constitution is a provision that allows the Senate to set its own rules and on numerous occasions senators have modified the concept of the filibuster. In 1917, the Senate decided that 67 senators could vote to cut off debate. In 1975, that number was reduced to 60. Through these changes, the Republic endured.
It is important to note, however, that what Senator Frist is proposing is not even a formal rules change. He is considering using a parliamentary maneuver that would essentially restore a 214-year-old precedent with a new precedent. This “restorative precedent” would only need a simple majority vote to pass. Another irony in this debate is that one of the most strident defenders of judicial filibusters, Senator Robert Byrd (D-WV), himself used precisely the same parliamentary maneuver Senator Frist is considering on four occasions when he was majority leader. In my view, the “Byrd Option” is the best title for Senator Frist’s proposal to set a precedent with a simple majority vote.
Senator Frist’s effort would leave the legislative filibuster untouched. All that would be rendered illegitimate is the previous two years of shenanigans by obstructionists who were disappointed with recent elections and want to protect, at any cost, the ability of liberal academics, activists, and wealthy donors to enact an agenda through the courts that has been repeatedly defeated at the ballot box.
My friends and neighbors in Oklahoma understand what is at stake in this debate. This debate ultimately is not about arcane Senate rules and procedures; it is about an increasingly fierce clash of ideas in our nation that transcend party and ideology.
Americans are aware of the very strong possibility that President Bush will nominate at least one person to the Supreme Court in the next four years. The public understands that the most important swearing-in ceremonies that occur in Washington are not always for presidents. Judges, not presidents or legislators, have settled some of the most important questions in our nation and will continue to do so in the near future.
I will continue to insist that the judicial nominations from any president – Republican or Democrat – receive the courtesy of an up-or-down vote. A shrill minority should not be allowed to run out the clock on a president who opposes the practice of judicial activism.
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