(770 words so far. no proofing yet)
This morning, we know for sure: the Senate Republicans are serious about President Bush?s judicial nominees.
There had been some question. Up until 6 PM last night, all the Majority Leader Bill Frist and his staff had to offer was talk. We heard from the Senator?s senior advisor that Frist had an ?itchy trigger finger? to get something done about the nominees being filibustered by his Democrat colleagues. Months ago, they told us to ?get ready for hardball.? Even before that, it was ?anything is possible, nothing is off the table.? And so when Frist?s staff told us last week, ?Get ready for fireworks,? I thought I knew what to expect: nothing.
But this morning, nobody can doubt that all that?s changed. At 6 PM last night, Frist opened a marathon all-night filibuster debate that?s scheduled to go on until at least midnight on Thursday?30 hours or more in total. With the Senate set to adjourn next week and the Medicare bill, the Energy bill, and appropriations still up in the air, Frist?s scheduling of this debate is as bold as its format; this is serious.
The Senate Democrats? judicial obstruction deserves this attention. So far the Democrats have filibustered four of President Bush?s judicial nominees: XXX. Democrat Senators? holds and promised filibusters block another dozen or so nominees. This state of affairs is unprecedented: never before has the Senate denied a judicial nominee a simple up-or-down vote with a filibuster. (No, Abe Fortas?s 1968 nomination to Chief Justice of the Supreme Court doesn?t count; President Johnson, sensing that Fortas would lose an eventual vote to bipartisan opposition, withdrew Fortas?s nomination after four months and one lost cloture vote.)
It is not clear that the Democrats? filibuster strategy is even constitutional. It takes sixty votes, which the Republicans don?t have, to break a filibuster. The Constitution?Article II, Section 2?stipulates that president shall nominate judges with the ?Advice and Consent? of the Senate. When the Constitution requires supermajority approval?such as when making treaties, mentioned in the same section?the Constitution says so. The Framers attached no such requirement to the to judicial nominations in the Constitution. As even Democrat Senator Zell Miller said around 2 AM this morning, a supermajority requirement is ?simply not there.? Nomination decisions should be by majority: 51 votes.
As ever, ?Justice delayed is justice denied,? The Democrats block judicial nominees to every circuit court in ?judicial emergency??that is, those benches so understaffed that citizens suffer delays of months or years in seeking justice.
Just as troubling, the filibusters throw the future of the nomination process into uncertainty. Given the scrutiny applied, for example, to Kuhl?who has been vilified by Senate Democrats as a racist and ?extremist? and ?hostile to women? (these latter two quotes from Sen. Barbara Boxer) for a memorandum to which she contributed as a junior staffer in the Office of the Solicitor General?who in the future will willingly submit to such indecencies and harassment? And will the special interest groups that are driving the filibusters?like People for the American Way and the National Abortion Rights Action League?become emboldened with their success and push for more? There are special interests on both sides of the aisle; if any group able to line up forty senators can block a judicial appointment, the result will be complete deadlock in the appointment process.
Until last week, Frist had three options to handle the Democrats? ?unprecedented effort? (that characterization taken from a fundraising email sent by Democrat Senator Jon Corzine), and two of them weren?t really options. The most attractive?and least likely?is passage of the Frist-Miller Filibuster Reform Act, which would cut filibusters down to six or seven days at most. Being a rule change, the measure needs a two-thirds vote and no Democrats, save Miller, would vote in favor. Despite that, the Act is scheduled for a vote on Friday, when it will be defeated.
A much-discussed possibility is the ?Constitutional option??sometimes the ?nuclear option,? so-called for the ?nuclear winter? that would follow. In this case, the Republicans would push a majority-only rules change with permission from the Senate President, Vice President Dick Cheney. For now, ?going nuclear? is impossible: Frist would need 51 votes and several Republicans, including John McCain, don?t support it. Going nuclear half-cocked would be disastrous; all work in the Senate would simply halt. Even winning such a rules change could have a similar result, though at least the appointment filibusters would be broken.
Give Frist that he?s creative: staging a marathon executive session was not an obvious solution to the filibuster problem.