There is a showdown approaching in the Senate.
With phrases like the “nuclear option” being tossed about, you’d think hand-to-hand combat or at least tactical strikes were about to break out on the Senate floor. But no, this militaristic jargon is for the rather obscure practice of selecting federal judges.
Republicans in the Senate are currently considering overturning the practice of “filibustering” judicial nominees to the federal courts.
Article III, Section 1 of the U.S. Constitution establishes the Supreme Court, and then federal courts as are needed from “time to time.” The judges sitting on these courts could only be removed if they were not on “good behavior” and could not have their pay reduced. Unlike what many think, the U.S. Constitution is not as clear as one might hope on a lot of procedural issues.
Same goes for the Congress. The procedures that run Congress are self-governing; there are very few hard and fast rules.
The filibuster, wherein a minority of the Senate can require that 60 votes requires passage of a judicial nominee, or passage of a bill, is a Congressionally created rule and quite an old one at that. A filibuster can be shut down via the procedure of “cloture” which requires 60 votes to end debate.
The House of Representatives, now too large and unruly to allow unlimited debate, does not have the filibuster. In the Senate, the idea that they may “advise and consent” for as long as possible is the democratic ideal.
Interestingly, filibuster is related to the Dutch word for pirate. Back when pirates were our main foreign policy concern, Senators prone to delaying legislation and making long-winded speeches were accused of hijacking our democracy, like pirates hijacked booty. That ought to give you an idea of how old the practice of filibustering is. Pirates!
But I digress.
Currently, Republicans are threatening to remove the filibuster from the arsenal of senatorial political tactics because Democrats are objecting to 10 Bush judicial nominees. Oh, how short their memory is.
Under Bill Clinton, for nearly the first time in U.S. history, the Republicans used the filibuster to block judicial nominees: 65 of them. Including every African-American nominated to the 4th Circuit Court of Appeals (thank you, Jesse Helms!), and for a six-month period, complete shut down on consideration of 47 judicial nominees (thank you, Orrin Hatch!).
In response to Democrats’ current objections, Republicans are throwing about such terms as “obstructionist” and even “unpatriotic.”
Of course, when Sen. John Smith of New Hampshire blocked a judicial nomination for four years straight and was subsequently criticized for it, he said, on the floor of the Senate, “Don’t pontificate on the floor of the Senate and tell me that somehow I am violating the Constitution of the United States of America by blocking a judge or filibustering a judge that I don’t think deserves to be on the circuit court. … That is my responsibility. That is my advice and consent role, and I intend to exercise it.”
Now Democrats are trying to save the filibuster by threatening to slow down or completely block nearly all legislation brought to the floor of the Senate for two years if the filibuster is done away with.
One might think this would be a daring, if not disastrous political maneuver, but there is a method to the madness.
Polls support the actions of Senate Democrats, and the support comes from a surprising group. Republicans.
Forty-one percent of Republicans favor keeping the filibuster, and 33 percent are saying Democrats need to keep Republicans from “going too far.” It seems that beyond the standard support Democrats will receive from their constituency, “going too far” on judicial nominees will hurt Republicans considerably.
What most Americans do not know is that Bush’s nominees, of the 10 being objected to, are only a small proportion of those nominated. Of the 229 judges that have been nominated, only 10 are found wanting by Democrats. This is the highest approval rate of judges for a president since Ronald Reagan.
These 10 nominees, including Priscilla Owen (virulently anti-abortion), William Myers III (possibly broke federal rules in mediating Western land disputes, hates the environment, looks like a total nerd), Thomas Griffith (practiced law without a license for four years, blamed his secretary) and Terrence Boyle (one of the most overturned judges ever nominated to the federal circuit courts) are just plain bad. They’re like the Dirty Dozen of judicial nominees, except they don’t want to steal Nazi gold, they want to steal your rights.
These are the nominees favored by the same people dying to save Terri Schiavo. These are the nominees favored by groups hoping to dismantle federal oversight of managed Western land. These are the nominees favored by groups whose agenda surpasses good politics.
The makeup of the Senate comes and goes, but federal judges stick around a long time. Not giving a full, open debate on the handful of judges Democrats object to looks like Senate Republicans are incapable of the one thing all politicians were supposed to excel at: compromise. If there is any thought going into this process then Republicans ought to be very, very careful.
Careful they do not pack a federal judiciary hostile to the rights of privacy, contract and criminal procedure in ways they did not imagine. Careful they do not alienate the 80 percent or more of voters who do not share the reactionary worldview of the constituency they are pandering to (their hard-core Christian base). Careful they do not eliminate a Senate rule they might want back in 2008.
I understand fully that politicians do not consider the long-term impacts of their shortsighted goals. I understand that Republicans now gain much traction and leverage by decrying the Democratic tactics of delay and can turn and point fingers, instead of offering solutions.
What I don’t understand is how looking back and looking forward Republicans see a fight worth picking over 10 lousy nominees.
Rob Deters ([email protected]) is a third-year law student.
