SIX TIMES NOW Senate Democrats have blocked a vote on Miguel Estrada’s nomination to the U.S. Court of Appeals for the District of Columbia. And twice Senate Democrats have blocked a vote on Priscilla Owen’s nomination to the U.S. Court of Appeals for the Fifth Circuit. Republicans are outraged by the filibusters. And they are outrageous. But permit us to invite the Democrats to stay their stupid course: Filibuster again! And again! Okay, if you’re Miguel or Priscilla or Carolyn Kuhl, a Ninth Circuit nominee who may be the next to be filibustered, it’s no fun watching Republicans move to cut off debate and then seeing Democrats again muster more than the 40 votes needed (a supermajority of 60 being necessary under Senate rules to end debate) to keep you from being voted on. Which is to say from being confirmed, since you know just as the rest of the world does that there is a Senate majority that includes the few sensible Democrats still remaining in the upper chamber, like Zell Miller of Georgia, who would say yes if only the roll were called.
But if the Democrats are going to persist in what Sen. Russell Feingold has conceded is “an extreme step,” then by all means the nominees should allow, and the Republican Senate should create, opportunities for them to be extreme. Majority Leader Bill Frist: Keep calling those cloture votes. And you Democrats: Keep voting no.
Is there any better way to publicize the message about “Democratic obstruction on judges” (a principal Republican talking point) than by repeated votes by Senate minorities made up exclusively of Democrats that prevent Senate majorities from approving the president’s nominees? Keep in mind that we’re not talking here about less visible means of obstruction. We’re not talking about what the Democratic-run Judiciary Committee did in 2001-02 –when it failed to hold, or unreasonably delayed, hearings, or when it held a hearing but declined to vote on the nominee. No, here we’re talking about quite public blocking actions–recorded votes. If the Democrats keep committing them, the Republicans should gleefully advertise them throughout the country.
Right now, the Republicans are trying to find ways to fix “the broken confirmation process” (another Republican talking point). Some Republicans have suggested that the president should sue filibustering Democrats on account of the Appointments Clause injury he is suffering by not having his nominees voted on; or that Estrada or Owen should complain because of some (unspecified) injury they have endured by not being voted on; or that some Republican senators should file a suit, since they are part of a majority that would confirm but for the bad Dems, and that therefore they are being denied their constitutional “right to consent,” a right found somewhere in the spilt ink between the lines of the original text. Of course, any judge worth his clerk would throw out any such lawsuit on the understanding that the Senate should work out its own rules. Speaking of which, the Republicans do have lots of ways to change the rules so as to overcome or prevent filibusters of nominations, and there is a good proposal or two among them. But no changes in Senate rules can be made except by a two-thirds vote–an even bigger hill to climb.
The truth is that there is no way other than ordinary politics truly to “fix” the process. Not incidentally, the Senate Republican leadership could force the Democrats to conduct a real filibuster–marathon, stay-up-all-night sessions like those of yesteryear. That might fix the process real quick. A larger Republican majority–obtained through electoral politics–could also fix the process. Consider that a majority of 56 Republicans–five more than now–is all that would be needed (since four Democrats would join them) to force a vote on the Estrada nomination.
The chief utility, we suppose, of the loud search for ways to “fix” the process is to draw media attention to the Democrats’ extremism. And of course the Republicans know that. (Maybe that’s why they haven’t forced a classic filibuster.) The wonder is that the Democrats seem clueless about the degree to which their blocking votes on nominees could hurt their chances for retaking the Senate in 2004.
Have they not seen, have they not heard, that in 2002 Republicans won the Senate in part because Bush made the Democrats’ treatment of his nominees an issue? “And I’ll tell you another big issue, . . .” he said on election eve in Missouri. “I have a responsibility to name good people to the bench. I’ve named a lot of really good people . . . but the bunch running the Senate [the Democrats] has done a lousy job on my nominees.”
In 2004, 19 of the 34 seats at stake in the Senate are Democratic, and independent observers believe Democrats can be confident of retaining no more than 9 of the 19, while Republicans can count on holding at least 10 of their 15. Can Democrats really relish the prospect of President Bush’s campaigning in states like Georgia, South Carolina, North Carolina, Florida, Arkansas, Nevada, North Dakota, and South Dakota, and talking, as he did in Rose Garden remarks last week, about the “crisis in our Senate” and “therefore . . . in our judiciary” produced by Democratic filibusters designed “to prevent an up-or-down vote on an appeals court nominee”? The vote-blocking Democrats are not only hurting their own party’s chances of recapturing the Senate but also handicapping their presidential nominee. What’s that person going to say–“I favor filibusters of Bush’s nominees, but not of my own”? Come to think of it, what are Joe Lieberman, Bob Graham, John Edwards, and John Kerry–vote-blockers all–going to say?
If the Democrats were smart, they would quit standing in the way of votes on nominees right now. They would see that what is sauce for the Republican goose could someday be sauce for their gander, and they shouldn’t like that prospect one bit. More important, they would recognize that blocking votes on nominees who enjoy majority support, while not exactly unconstitutional, shows disrespect for the exclusive authority of the president to nominate judges.
Democrats once understood the nominating power. Maybe they can recall the example of FDR. But then again, maybe they can’t. And maybe they really do think that their filibustering is good for the country. If so, no one–tongue in cheek or not–need admonish them to keep on filibustering. They’ll do it anyway, borrowing trouble all the way through Election Day.
–Terry Eastland, for the Editors
