Fili-busted!

At the heart of this is the issue of how federal judges are appointed. According to the Constitution, the President nominates and the Senate either approves them or votes them down. The Senate as a whole can approve or deny a candidate, but a minority is nowhere granted the ability to defy the majority. In this matter, as with most every other I can think of, the majority rules. Isn't that the central concept of democracy? Not according to quite a few anti-Bush people holding public office or positions of public trust. The MSM and vocal democrats (is there a difference?) have pulled no punches in claiming that filibusters are a time-honored component of our democracy. Oddly enough, many of the same people who now want to protect the filibuster are on the record as denouncing the practice when the shoe was on the other foot. Senator Joe Biden:

The Washington Times notes that, in an appearance on ABC's "This Week," Biden flatly denied having said in 1997 that judicial nominees are entitled to an up-or-down Senate floor vote. Yet according to the Congressional Record, Biden stated just that on March 19, 1997:

I respectfully suggest that everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor. . . .It is not appropriate not to have hearings on them, not bring them to the floor and not to allow a vote.

The Minneapolis Star Tribune:

...we quoted a Strib editorial dated September 30, 1994, which said: "[Reformers] should crusade for changes in Senate procedures that would prevent an obstructionist minority from delaying action indefinitely." Today we got an email from Jim Boyd, titled "Oops." It said:

John: Re. the filibuster: I was looking only at the one 1993 editorial about filibusters. There was a second editorial in 1994, in which we endorsed a Don Fraser proposal for revising senate rules. We'd missed the second one in a search we did before running our Sunday editorial. We found it about half an hour ago. I think you actually have caught us in a contradiction. We can change our mind, as we did on light rail, but in this case, we really didn't. We simply missed the precedent and, like a court, if we make such a shift, we owe readers an explanation for why we did it.

And, to nobody's great surprise, the New York Times. Watching the NYT talk out of both sides of their mouth is too good to pass up, so forgive the long excerpts.

... Free Republic has posted the text of the still-timely January 1, 1995 New York Times editorial: "Time to retire the filibuster." Here is the Times's 1995 teaching:

The U.S. Senate likes to call itself the world's greatest deliberative body. The greatest obstructive body is more like it. In the last season of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored Senate tradition so disgusted Senator Tom Harkin, a Democrat from Iowa, that he is now willing to forgo easy retribution and drastically limit the filibuster. Hooray for him. ... One unpleasant and unforeseen consequence has been to make the filibuster easy to invoke and painless to pursue. Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes. Mr. Harkin, along with Senator Joseph Lieberman, a Connecticut Democrat, now proposes to make such obstruction harder. Mr. Harkin says reasonably that there must come a point in the process where the majority rules. This may not sit well with some of his Democratic colleagues. They are now perfectly positioned to exact revenge by frustrating the Republican agenda as efficiently as Republicans frustrated Democrats in 1994. ... The Harkin plan, along with some of Mr. Mitchell's proposals, would go a long way toward making the Senate a more productive place to conduct the nation's business. Republicans surely dread the kind of obstructionism they themselves practiced during the last Congress. Now is the perfect moment for them to unite with like-minded Democrats to get rid of an archaic rule that frustrates democracy and serves no useful purpose.

The Free Republic thread includes Senator Cornyn's March 10, 2005 letter to the editor regarding the Times editorial earlier that week. We yield the floor to Senator Cornyn:

"The Senate on the Brink" (editorial, March 6) supports the "historic role of the filibuster," which is a curious position for a newspaper that 10 years ago said filibusters were "the tool of the sore loser" and should be eliminated ("Time to Retire the Filibuster," editorial, Jan. 1, 1995). Federal judicial appointments have certainly been controversial, but surely all Americans can agree that the rules for confirming judges should be the same regardless of which party has a majority. Now you praise the filibuster as a "time-honored Senate procedure." In 1995, when Bill Clinton was president, you called it "an archaic rule that frustrates democracy and serves no useful purpose." You disparage the Republicans' view that 51 votes should be enough for judicial confirmation. Yet the 51-vote rule is a consistent Senate tradition. By calling for an end to filibusters, the Senate is simply contemplating restoring its traditions by traditional methods you disparage as "nuclear," even though they were once endorsed by such leading Democrats as Senators Edward M. Kennedy, Charles E. Schumer and Robert C. Byrd.

Rhetoric aside, what is the right thing to do? Outside of Those In High Places, it seems most people think the candidates should be voted up or down. So does Senator Bill Frist, majority leader. In his speech before the Senate today (full analysis here), Frist called for new Senate rules disallowing filibuster of Judicial nominees either on the floor or in committee.

• The judiciary committee will continue to play its essential oversight and investigative roles in the confirmation process. But the committee -- whether controlled by Republicans or Democrats -- will no longer be used to obstruct judicial nominees.
• When a judicial nominee comes to the floor, [the Senate] will set aside up to 100 hours to debate that nomination. Then the Senate as a whole will speak with an up-or-down vote.
• [T]hese proposals will apply only to appeals court and Supreme Court nominees. Judges who serve on these courts have the awesome responsibility of interpreting the Constitution.
• The filibuster -- as it existed before its unprecedented use on judicial nominees in the last Congress -- will remain unchanged.

The 100 hours rule allows for one hour of debate per senator, a fair compromise for a body which only has the role of "advise and consent". The speech and analysis both make reference to the fact that Democrats have a few grudges on account of Clinton nominees who were blocked in judicial committee. Neither side is without blame here, though filibustering in the Senate takes it to a new extreme. Especially interesting is PowerLine's analysis of the political impact of presenting this offer.

Will the Democrats accept? I think they might, since they know (at least, I think they know) that the Republicans have the votes needed to change the Senate rule and ban the filibuster with respect to judges. For the Democrats, it comes down to a political calculation. The first part of the calculation is, if they reject the compromise and force the Republicans to proceed with the Constitutional option, do they gain or lose votes? Notwithstanding their bravado, my guess is that the Democrats fear they will be the political losers if they go to the wall for the principle that a minority should be able to block a judicial nominee from receiving a vote. But the calculation has a second stage: whatever the general public may think, do Democratic Senators risk losing the support and enthusiasm of important elements of their base if they stop short of doing everything possible to block President Bush's judges? I suspect that they do. Among the Democrats' richest and most fervent supporters, this may be the number one issue. So Senator Frist's proposal puts the Democrats in a very difficult position.

There's no doubt it's fortunate for the Republicans that this situation is currently playing in our favor, but Frist's proposals make sense for the long run as well as the short term. The Democrats are between a rock and a hard place, and Frist's proposal has done much to force them to fish or cut bait: go on the record supporting the indefensible filibuster, or play ball and let the nominees come to a vote. Before I run out of cliches, I'd better end with sober news from the analysis of Frist's speech:

Frist said previously that he would not accept any offer that lets Democrats filibuster past or future judicial nominees. And [minority leader] Reid said he would not accept any deal that keeps Democrats from blocking future nominees.