Judiciary

Should Senators End Filibuster of Nominees?NO: Do Not Abandon Measure Once Used To Halt Liberal Agenda

Imagine a world where:

  • There would be guaranteed federal funding for abortion (102nd Congress);
  • Federal lawsuits against gun dealers and manufacturers had eliminated firearms ownership (97th Congress);
  • A statutorily created equal rights amendment guaranteed a right for homosexuals to marry (97th Congress); and
  • Democrat-crafted election law “reform” had frozen Republicans into permanent minority status (100th through 102nd Congress).

    You have just imagined what America would be like without the filibuster.

    Virtually every federal restriction on abortion exists because senators such as Gordon Humphrey (R.-N.H.) and Bob Smith (R.-N.H.) filibustered (or threatened a filibuster) against a pro-abortion majority seeking to delete them.

    The 2nd Amendment is still viable–and “gay marriage” is not a federally guaranteed right–because Jim McClure (R.-Idaho) and Jesse Helms (R.-N.C.) filibustered a “must-pass” omnibus crime bill.

    Now, a gaggle of “conservatives” with no historical memory and no knowledge of the Senate rules are working to do away with the filibuster–the Senate’s tradition of unlimited debate. The ostensible purpose is to allow the Senate to rubber stamp the Bush Administration’s judicial nominees.

    Make no mistake: You cannot eliminate the judicial filibuster without effectively destroying the legislative filibuster as well.

    Proponents of the “nuclear option” argue, by inference, that filibustering judicial nominees is unconstitutional because the Constitution specifies a two-thirds majority for treaty ratification, but not “advice and consent.”

    But by giving the Vice President the tie-breaking vote when “they be equally divided,” the Constitution makes it explicit that legislative issues are to be decided by majority vote.

    If the Senate’s rule-making powers under Article I, Section 5, do not allow a filibuster for nominees, they certainly don’t allow a filibuster for legislation.

    The first time a major legislative controversy occurred, the legislative filibuster would be obliterated by the same procedures used to destroy the judicial filibuster.

    The “nuclear option” is even worse. Under this scenario, the majority leader seeks a ruling that the Senate is “not a continuing body.” This means the rules from the previous Congress are not binding, and the leadership alone determines which rules continue to be valid.

    When a Democrat majority leader attempted to use this procedure in the 96th Congress to eliminate the legislative filibuster, conservatives fought him tooth and nail. Majority Leader Bob Byrd (D.-W.Va.) was then sitting on a 58-42 majority. A few months later he was in the minority.

    Are we so sure Bush’s tenuous victory against a Massachusetts liberal guarantees Republicans permanent control?

    A few additional points:

  • Normally, a “constitutional point of order” is “put to the Senate,” where it can be filibustered, subject to a 60-vote “cloture requirement.” Thus, the “nuclear option” would require a dictatorial show of force that would destroy a wide variety of Senate precedents.
  • If Democrats regain control, they will mercilessly apply any new powers we give to them. Have conservatives forgotten that Byrd had arrest warrants written for minority senators in order to try to pass Republican Party-crippling election “reform”? Or that Sen. Bob Packwood (R.-Ore.) was injured during his arrest and had to be carried into the Senate chamber?
  • Existing procedures can force votes on Senate nominees. These include all-night sessions and enforcement of the two-speech rule. And, no, these procedures would not require Republicans to stay all night while Democrats went home to bed.

    Conservatives may want to remember the record of recent Republican Presidents: Eisenhower’s first contribution to the bench was Chief Justice Earl Warren. Reagan’s first pick–Sandra Day O’Connor–sent conservatives into a conclave contemplating, ironically, a filibuster. Gerald Ford had only one pick, and gave us John Paul Stevens. George H.W. Bush’s first associate justice was David Souter–arguably the court’s most liberal member. And Nixon? His first successful associate justice nominee was Harry Blackmun–yes, that Harry Blackmun.

    Read Manuel Miranda’s case FOR ending the Democrats’ obstructionism here.


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