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Judicial Filibuster: Democrats’ Clintonian Definition of What a ‘Vote’ Is

Senate Minority Leader Harry Reid speaking for the perfectly unified Senate Democrats advanced their argument during Wednesday morning’s U. S. Senate debate on the first of several planned resubmissions of President Bush’s nominees to appellate court judicial posts, that of Priscilla Owen. The showdown over Owen will shortly be followed by the resubmission of the nomination of Justice Janice Rogers Brown and other Bush nominees to the federal appellate bench. Reid’s presentation was overflowing with misinformation, misleading statements and outright deception. But one intentional distortion was so outrageous that it stands out as bolder and more duplicitous than all the rest.

Justice Priscilla Owen was first nominated to the 5th Circuit Court of Appeals on May 9, 2001. Justice Janice Rogers Brown was first nominated on July 25, 2003 to the District of Columbia Circuit Court of Appeals.

Each of these respected jurists, previously elected to high state judicial office by overwhelming majorities in their respective states, was filibustered in the U. S. Senate by the Democrats and thereby denied the up-or-down vote called-for in the U. S. Constitution, Article II, Section 2 in which the Senate’s advice and consent function is granted.

Democrats invented the filibuster of judicial nominees in 2003, when the previous congress was in session, in order to defeat many of President Bush’s conservative nominees to the federal circuit courts. The filibuster strategy developed out of the Democrats’ concern for the fact that Republicans commanded a majority in the Senate and were in a position to approve all the president’s appellate-level judicial nominees. As a result of the new filibuster tactic employed by the Democrats, President Bush has had the lowest confirmation rate for such appointments in the history of the U. S.

At issue is whether the Democrats have the right to change procedures that have governed the Senate for over 200 years in acting on judicial nominees, providing for what is known as an up-or-down vote on the Senate floor. By universal assent of every Senator, politician and historian of the Senate, never in U. S. history has approval of judicial nominees required anything more than a simple majority of 51 votes in the Senate. Not even those Senate Democrats who are most opposed to President Bush’s allegedly "out-of-the-mainstream onservative nominees" are proposing that the simple majority requirement be upped to a supermajority.

Instead, the Democrats have circumvented the existing simple majority requirement through a legislative maneuver, using a technicality in the Rules of the Senate (# XXII) allowing for unlimited debate on all legislative matters, termination of which requires a three-fifths vote of the Senate (60 out of 100 votes). This Senate Rule has never been interpreted as applying to judicial nominees, and no nominee has ever been filibustered who was aknowledged by both parties to command a simple majority support (though cloture votes have been taken as a temporary delaying tactic or when in cases where nominees could not even command simple majority support in such cloture votes). Each and every one of President Bush’s nominees blocked thus far by a filibuster is known to have had the simple majority support requisite for approval.

The issue came to a head because, beginning in 2003, Democrats began filibustering to death an unprecedented number of President Bush’s judicial nominees to the federal circuit courts of appeals. The net effect was that those nominees blocked by filibusters never received the up-or-down vote provided for in the U. S. Constitution’s advice and consent clause, Article II, Section 2. Due to the Democrats’ sleight of hand filibuster tactic, despite having majority support the filibustered nominees never received any vote at all on their nominations.

In Wednesday morning’s debate, Democratic Minority Leader Reid made the astonishing claim that contrary to the Republicans’ claim, Priscilla Owen, Janice Rogers Brown and by extension all of the previously filibustered Bush nominees to the appellate bench had in fact already received votes on the floor of the Senate.

Did we miss the vote to which Sen. Reid refers? Was it held in secret executive session as votes on some judicial nominations were early in the history of the country? – Are Justices Priscilla Owen and Janice Rogers Brown now happily sitting on the courts of appeals—while hidden in some top secret location?

Since it is universally acknowledged that no vote on a judicial designee has ever required more than 51 votes for approval, and since these two nominees without question have the support of well over 51 Senators, we are led to wonder: What might the wily leader of the Senate Democrats possibly be referring to in claiming that they have already received votes?

The explanation lies in the fact that when the Priscilla Owen and Janice Rogers Brown nominations were first submitted and filibustered in the last congress, the two nominees’ supporters attempted to invoke cloture. This vote required 60 votes on the floor of the Senate.

That cloture vote was held for each of these nominees. And each failed to reach the required 60 votes to invoke cloture, end the filibuster, and force an up-or-down vote that would have required only a simple majority to approve each of these nominees.

Thus, Justices Priscilla Owen and Janice Rogers Brown never received a vote on their nominations due to the fact that the cloture vote failed. The vote to invoke cloture was a procedural move to force an end to the debate, not a vote to approve or disapprove the nominees.

This failed procedural cloture vote is the basis for Sen. Reid’s duplicitous claim, repeated over and over again in yesterday morning’s Senate debate, that these and all of President Bush’s nominees who were filibustered to death did receive a vote on the floor of the Senate. He is merely switching the meaning of the word vote, to refer not to any vote on the nominees, but to the procedural vote on whether to invoke cloture and terminate debate.

Conclusion: Here Sen. Harry Reid is saying, to borrow a phrase from Bill Clinton, It’s all a matter of what the definition of "vote" is. Sen. Reid is a worthy successor to the former president in the techniques of manipulating language for political advantage. A proud tradition indeed.

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Written By

Sherry Eros, MD, is a neuropsychiatrist and Steven Eros is a philosopher. They are conservative columnists and maintain an online presence at their blog, Eros Colored Glasses.

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