TruthNews Commentary, November 21, 2003

The Republicans have been whining mightily that the evil Democrats won't let them confirm several conservative judges nominated by President Bush. These nominations have been approved by the Senate Judiciary Committee, but the Democrats have not allowed these nominations to come to a floor vote.

One of those nominees, Miguel Estrada, was nominated to the D.C. Circuit Court of Appeals. Estrada is a Honduran immigrant who graduated magna cum laude from Harvard Law School, where he was an editor of the Harvard Law Review. After law school, Estrada served as a law clerk to Supreme Court justice Anthony Kennedy. He then served as Assistant U.S. Attorney in New York and Assistant to the Solicitor General Department of Justice. The Democrats believe that any conservative minority is a traitor to his race, so they left Estrada twisting in the wind for over two years without allowing a confirmation vote. Estrada finally decided to withdraw from the process altogether.

Six other judicial nominees to the appeals courts have been waiting over 2 years for a confirmation vote.

So why is this happening? Don't the Republicans control the Senate? The answer is, "yes, but...." The "but" is that honored parliamentary tactic known as the filibuster.

Ever since the first Senate convened in 1789, the Senate rules have allowed "unlimited debate." This means that any senator on the floor of the Senate can talk about anything he wants for as long as he wants without anyone being able to shut him up. And being the polite deliberative body that the Senate is, only one person can talk at a time, and no votes are taken while some senator is hogging the floor. It's possible to stop debate by voting for "cloture" (Latin for "shut up") but it takes 60 senators to do so. Since the Republicans hold only 52 of the 100 Senate seats, it would obviously take some Democratic cooperation in order to vote for cloture. So when a judicial nomination comes up that the Democrats don't like, they keep talking and talking and talking. This ties up not only the judicial nomination, but also all other senate business such as voting for an additional $87 billion to occupy Iraq and or voting to allow the capitol grounds to be used for the Greater Washington Soap Box Derby. (Presumably, the senators were trying to make amends for the 19th century Congressional scrooges who banned Easter egg rolls from the capitol grounds in 1878. President Rutherford B. Hayes then invited the kids to the White House for what has become the White House Easter Egg Roll). So eventually, the Republicans give up, withdraw the nomination from consideration, and move on to other more pressing matters such as the Soap Box Derby.

Before 2001, a filibuster had never been used to block judicial nominations. Filibusters have normally been used to block legislation. One of the most famous filibusters on record was when Democratic Senator Robert Byrd, a former Ku Klux Klan member, attempted to block the Civil Rights Act in 1964. The filibuster failed when Democrats and Republicans joined together to vote for cloture. But until 2001, neither Democrats nor Republicans had ever blocked judicial nominees from being voted on by the full Senate simply because they feared their political views. If the filibuster had been used on judicial nominations, Republican-controlled Senates could have blocked liberal Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer. Democrats, in turn, could have blocked conservatives like Clarence Thomas and Antonin Scalia.

So why does this situation continue? The House of Representatives doesn't have stupid rules to allow members to gab endlessly to thwart House business, so why should the Senate? It would seem a simple matter for the Republicans to change the Senate rules to eliminate or modify the filibuster. However, the filibuster is one of the most powerful tools that any senator possesses. It allows one man to shut down the Senate in order to obtain desired changes to legislation. And no senator wants to give up any of his personal power. In addition, the Republicans are aware that they may soon be in the minority again, and they want the power to thwart the Democrats through the filibuster. Of course, there's nothing to stop the Democrats from changing the rules if they regain power.

When the Republicans complain about not getting to vote for judicial nominations, they have only themselves to blame. They could change the rules, but they're too greedy for their own personal prerogatives, so the endless filibuster continues.