A political impasse over judicial nominees is brewing on Capitol Hill. The Republican Party leadership fully intends to deploy the “nuclear option,” the Republican antidote to the filibustering of President George W. Bush’s federal judicial nominees and result in only a simple majority of 51 votes to allow an up or down vote on judicial nominees.
Emboldened by the gain of two more Republican Party seats, confronted with the prospect of Chief Justice William Rehnquist’s resignation this June and met with the need to deliver for the “values voters,” the unconventional option is now palatable. Still, resorting to the “nuclear option” is decried as a dirty parliamentary trick by commentators on both sides of the aisle. Let’s be clear. If used, the Republican Party invocation of the “nuclear option” will be the unfortunate result of liberal obstructionism.
Contrary to the Democratic song and dance, the minority filibuster of Bush’s judicial nominees is unprecedented. In 107 Congresses, no judicial nominee supported by a simple majority of the U.S. Senate has ever been filibustered successfully. According to a December 2002 Congressional Service Research Report, only three presidential nominees have been filibustered and subsequently not confirmed, only one of whom was a judicial nominee. More disturbing is that before 2003, no lower court judicial nominee had ever been successfully filibustered by the Senate minority.
Unfortunately, the Democrats have successfully eroded what used to be an established judicial nomination process. The ugly 2003 filibusters of Bush nominees Miguel Estrada and Priscilla Owen are prime examples of the Democrats’ shameful break with more than 200 years of Senate history. If the threats of Senate Minority Leader Harry Reid, D-Nev., are any indication, the upcoming debate over Bush’s renewed nominees promise more of the same shenanigans. The filibuster is now the commonplace tool to fight the nomination of judicial nominees who ardently believe in constitutional and statutory interpretation rooted in the text and intent of the legislature. The hostage-taking of the judicial nomination process by the Senate minority should be disturbing to anyone watching.
While it is true the Senate did not confirm as many as 60 of former President Bill Clinton’s nominees, the situation under Clinton was distinct. While Clinton’s confirmation numbers did slip with respect to past presidents, for six of Clinton’s eight years in office, a Republican majority controlled the Senate; the national balance of political power was not what it is today. Even still, Clinton’s confirmation rate for federal circuit court judges was more than 70 percent while Bush’s numbers languish just more than 50 percent, despite a Republican-controlled Senate.
After careful consideration, it is remarkable the Democrats are unable to glean the futility of their position on judicial nominations. To start, the party broke with Senate precedent and has initiated a political snowball that might very well result in legislative standstill and an understaffed, overworked and inefficient federal court system. In addition, by filibustering nominees supported by a Senate majority, Democrats beg similar obstruction in the future and insure a future of cyclical gridlock over judicial nominees. Do the Democrats truly believe that if they again came to control a majority in the Senate, the Republican Party leadership would role over, forego filibustering Democrats’ nominees and accede in the appointment of a host of judges who wholeheartedly embrace the “living constitution”? Finally, if the November defeat of then-Sen. Tom Daschle is any indication, the Democrats’ obstruction tactics promise little in the way of electoral capital. Just what are the donkeys on Capitol Hill thinking?
Given the party’s convincing defeat last November, the Democrats’ obstruction of the judicial nomination process should be unsurprising. If the Democrats hope to regain political power without moving to the right, naturally, liberal judges in the courts constitute a major piece of the Democratic Party strategy. Pragmatic judicial legislation under the guise of neutral interpretation is the Democrats only hope of effectuating policy that would seldom garner a majority of public support. Moreover, liberal judges effectively grant Democrats political cover by making tough, unpopular choices for liberal politicians with their electoral futures in mind.
It is true the Republican Party’s need to resort to the “nuclear option” is unfortunate. If invoked, the political move will constitute its own damaging break with precedent. However, there is no question as to why the “nuclear option” has now become the Republican Party’s best option. It is the Democrats who have predominately led the country into the judicial confirmation fiasco. Before a mushroom cloud rises from the Senate, it is high time the Democrats realize the resolve of the conservative majority, the damage they’ve inflicted on the judicial nomination process and the futility of their obstruction.
Bryan Freeman welcomes comments at [email protected].
