Democrats Won't Rule Out Filibustering Justice Nominee

In 2002, when Democrats still controlled the Senate, their leadership heartily supported the efforts of Judiciary Chairman Patrick Leahy (D.-Vt.) to bottle up lower court nominees in his committee.

But then-Senate Majority Leader Tom Daschle (D.-S.D.) promised to allow the full Senate to vote on Supreme Court nominees.

"I have indicated, when we became members of the majority, that Supreme Court justices, I think, deserve-because of the unique nature and importance of the nominee-to have that vote regardless of how the votes may be cast in committee," Daschle said in a Feb. 12, 2002 press conference.

Now the Democrats are in the minority, and no longer able to unilaterally prevent judicial nominations from going to the Senate floor. Instead, to stop judicial nominees they don’t like but can’t muster a majority against, they have turned to the filibuster. With the support of just 41 members in the 100-member Senate, any senator can indefinitely extend debate, thus preventing an up-or-down vote.

Senate Democrats are now using the filibuster in an unprecedented way, to block floor votes on the appellate court nominations of Miguel Estrada and Priscilla Owen-both of whom they blocked at the committee level last year, and both of whom have majority, but not filibuster-proof support, in the full Senate. A big question looms: Will Democrats use the same technique to block a Bush nominee to the Supreme Court?

HUMAN EVENTS Assistant Editor David Freddoso called Daschle’s office to ask whether he would still guarantee a floor vote for Bush Supreme Court nominees. Despite Daschle’s statement from 2002, that apparently indicated he would allow such vote, Daschle’s spokesman evaded the question. "We’re not going to get into the hypotheticals of a hypothetical nomination that may or may not be made," he said.

Freddoso went to Capitol Hill to ask other Democrats if they would rule out a filibustering a Supreme Court nominee.

Excuse me, Sen. Bayh? I’m Dave Freddoso of HUMAN EVENTS.


Would you rule out a filibuster against a Supreme Court nominee?

BAYH: David, I don’t know. My mind is totally on the tax bill and some other things we’re working on today. If you’ll ask me in a week or so, I’d be happy to answer you.

Will you rule out filibustering a Supreme Court nomination that you found ideologically objectionable?

SEN. MARIA CANTWELL (D.-WASH.): Well, if I didn’t think they should be on the court, yes. If I didn’t think they should be on the court-I don’t know about your definition of ideology.

If someone like Priscilla Owen were nominated to the Supreme Court, the fact that it’s a Supreme Court nomination would not make you rule out filibustering?


Will you rule out filibustering against a Supreme Court nominee?

SEN. RUSS FEINGOLD (D.-WIS.): You know, I haven’t really thought about it. I’d want to think about that.

It looks like there might be a Supreme Court nomination or two this summer. Would you rule out filibustering against a Supreme Court nominee?

SEN. DANIEL INOUYE (D.-HAWAII): Well, I’m not a filibusterer, but I suppose you can anticipate one.

Would you support it-would you participate in it?

INOUYE: Oh, no. I’d just listen.

Would you vote to sustain it?

INOUYE: Oh, yes.

There are rumors now that perhaps two Supreme Court justices will retire this summer. Will you rule out filibustering against a Supreme Court nominee?

SEN. JIM JEFFORDS (I.-VT.): It depends on the facts. But I think I wouldn’t want to give anything up just yet. I won’t give you any philosophy; I would just say that’s an important procedural tool of the Senate that ought to be retained.

Senator, would you rule out filibustering against a Supreme Court nominee on ideological grounds?

SEN. TIM JOHNSON (D.-S.D.): No, no, I think it’s fair game that judges be in the American mainstream of jurisprudence. I would oppose someone who is ideologically extreme.

So someone who-you would actually support a filibuster, not just vote against them.

JOHNSON: Yeah, I think that that’s what we’re doing with Priscilla Owen.

But even with the Supreme Court, the same principle applies?

JOHNSON: The same applies.

Will you rule out filibustering against a Supreme Court nominee?

SEN. BEN NELSON (D.-NEB.): No, I wouldn’t. I have always said that I would reserve the right to filibuster if there was a Supreme Court candidate that I thought was a judicial activist, rather than an adjudicator.

President Bush likes to talk about "strict constructionists." Let’s say somebody along the lines of Priscilla Owen were nominated-

NELSON: Well, she’s hardly a strict constructionist. To me, she went off in a couple of her opinions like a judicial activist.

So you might filibuster someone like her?

NELSON: Well, I don’t want to identify her as one, because I haven’t. But the requirements for me are that they not be judicial activists, that they have a record you can look at, and that they pass muster, and understand that their role is to be an adjudicator, not a legislator.

Will you rule out filibustering a Supreme Court nominee?

SEN. DEBBIE STABENOW (D.-MICH.): Would I rule that out? No, I would not rule that out. Those are lifetime appointments. They’re extremely important for people. So no, I would not rule that out.