Talking Judges to Death
Politicians are too often known for talking an issue to death. Unfortunately, Senate Democratic leaders have taken this practice to a new extreme by filibustering nominees for the federal judiciary.
The Constitution gives the President the right to nominate federal court judges with the advice and consent of the Senate. This has historically meant that judges needed only a simple majority of Senators to support them to be confirmed and to take their place on the federal bench. In the first term of President Bush, Senate Democrats have sought to drastically change this more than 200 year precedent by refusing to allow yes-or-no votes on these nominees.
The result has been many highly qualified judicial nominees who have the support of a majority of Republican and Democratic senators are being denied confirmation.
All of President Bush’s filibustered judges have received top ratings by the American Bar Association, which reviews all judicial nominees to rate their qualifications. Democrats have long considered the ABA’s recommendations to be the "gold standard" of evaluating judicial competence.
During his first term, only 69 percent of President Bush’s nominees to the appeals courts received up-or-down votes on the Senate floor. The effect of this obstruction has been to create a serious vacancy rate on the federal appellate courts.
President Bush recently resubmitted a number of the judges that were blocked during his first term and there has been much speculation on what will be the next step. One possibility, often referred to as the constitutional or "nuclear" option, would change Senate rules to prevent filibusters just on judicial nominees.
I clearly understand the importance of filibusters and would not want to see them done away with completely. However, I do think it is important to make a distinction between filibustering legislation and filibustering judicial nominees.
The interests of the minority party are protected in the United States Senate. Filibusters are allowed to ensure that the minority party has a voice in crafting legislation. When working on a piece of legislation it is possible to make changes and compromises to legislative language until you reach the 60 votes needed under the Senate rules to bring debate to a close. Unlimited debate ensures that compromise can take place.
Judicial nominees are very different from legislation. A person cannot be "redrafted" or compromised on as bills can. For judicial nominations, it’s the Senate’s responsibility to determine whether the nominees are qualified for the positions they are nominated to, and to vote them up or down. Throughout our nation’s history it has only taken a majority of Senators to determine a nominee’s qualification. That is a history worth continuing.
History has proven the wisdom of having the President place judges with the support of the majority of the Senate. That process ensures balance on the court between judges placed by Republican Presidents and those placed by Democrat Presidents. The current obstruction led by Senate Democratic leaders threatens that balance. It’s time to make sure all judges receive a fair vote on the Senate floor.