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The
Republicans' New Perspective On The Filibuster
April 21, 2005
Steve Chapman
In the Senate
debate over the filibustering of judicial nominees, it's helpful to know
something about congressional procedure, democratic theory and
constitutional interpretation. But none of those is as important as the
oldest law of politics: Where you stand depends on where you sit.
Republicans are
currently perched atop a comfortable majority, with 55 out of 100 senators.
Like majorities everywhere, they really like majority rule. Democrats, who
once took control of Congress as their natural birthright, have gotten used
to being outnumbered in the Senate. So they are determined to use any tool
to keep the majority from imposing its will.
President Bush's
favorite Supreme Court justice, Antonin Scalia, was lionized by
conservatives for his blistering dissent when the court struck down laws
against sodomy. In that opinion, Scalia denounced "the invention of a
brand-new `constitutional right' by a court that is impatient of democratic
change."
But GOP
conservatives have decided it's their turn to play inventor. They have
convinced themselves that the filibustering of judicial nominees is
unconstitutional, and that those nominated to the federal bench have a
constitutional right to an up-or-down vote by the full Senate.
The Constitution
says the president appoints judges with the "advice and consent" of the
Senate. Conservatives interpret this to mean the Senate has the power to
accept or reject a nominee, but not to do nothing. The filibuster, however,
allows as few as 41 senators to block a vote indefinitely. So Senate
Majority Leader Bill Frist (R-Tenn.) has threatened to change the rules to
ban its use against judicial nominees.
There are two
things wrong with the Republicans' argument: 1) It has zero support in the
text of the Constitution, and 2) it's completely at odds with their handling
of judges nominated by President Bill Clinton.
The Constitution
has one thing to say about the rules of the Senate: that those rules are not
to be found in the Constitution. "Each house may determine the rules of its
proceedings," it states in Article I, Section 5, at which point it abruptly
drops the subject.
Critics of the
filibuster, however, say there are limits to Congress' authority over its
own deliberations. In their view, rules may not impose a "supermajority"
requirement that the Constitution doesn't provide (as it does for treaties
and constitutional amendments, which have to pass by a two-thirds vote).
Nice theory, but
where did they find it? Not in the Constitution. The "advice and consent"
clause doesn't even say that a majority of senators is needed to confirm a
nominee. The definition of "consent" is left to the Senate.
Conservatives are
fond of citing Sarah Binder of the Brookings Institution, a leading scholar
on the filibuster who supports strict new limits on its use. They often
quote her declaration (made in an article co-written with Steven S. Smith of
Washington University) that this procedure, far from being part of the
framers' design, "was not created until 1806"--and "probably by mistake."
They prefer not to quote other lines from that article, such as: "No reading
of the Constitution can support the idea that filibusters are
unconstitutional."
Republicans
portray the Democrats' use of this device against judicial nominees,
however, as shockingly unprecedented. In fact, the GOP used the filibuster
to block President Lyndon Johnson's 1968 nomination of Abe Fortas for chief
justice of the United States. More recently, they tried valiantly to
filibuster six of Clinton's choices for the federal bench.
But usually they
didn't need this tactic to prevent the full Senate from voting. Richard Paez,
nominated to an appeals court, had to wait more than four years for the
Senate to vote on his confirmation. Particularly during the last year of the
Clinton presidency, Republicans were loath to fill vacancies that might be
filled by George W. Bush. Often, the GOP-dominated Judiciary Committee
simply refused to send such nominations to the floor. That and other
delaying tactics were used against some 60 Clinton appointments to the
bench.
If the
Constitution guarantees nominees a full Senate vote, there are a lot of
Clinton nominees whose rights were rudely trampled. It's hard to see why
blocking a nomination by means of a filibuster is illegitimate, but blocking
one by means of committee inaction is not. It's hard to see why a
parliamentary procedure that has existed for two centuries is suddenly
unconstitutional.
But sometimes you
can't see something because your view is obstructed. Sitting atop all three
branches of government, Republicans suddenly have no trouble seeing the need
for the majority to get its way, right away.
Steve Chapman is a
member of the Tribune's editorial board. E-mail:
schapman@tribune.com
Copyright (c) 2005, Chicago Tribune
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