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Senate Democrats: Filibusters are no longer just for the floor

By John Nowacki
web posted March 3, 2003

Miguel Estrada is the first court of appeals nominee to face a real filibuster in the history of the Republic. Having finally crossed that threshold, Senate Democrats showed last week that they are more than willing to use that tactic against any nominee who has the votes for confirmation.

Court of appeals nominees Deborah Cook, John Roberts, and Jay Bybee were all reported out of the Judiciary Committee on February 27, but not without a fight. Committee Chairman Orrin Hatch had postponed their votes twice as a courtesy to Democrats, receiving assurances in return that they would cooperate in bringing them to a committee vote last week. What Hatch got was a filibuster attempt; hardly the cooperation he'd been assured of.

Knowing the nominees are opposed by the usual left-wing groups -- and some committee Democrats, who automatically follow suit -- Hatch bent over backwards to make sure that Democrats had a chance to speak on the nominations.

Patrick Leahy rambled on about congressional oversight and finally got around to mentioning the nominees. Ted Kennedy went on at length about each of the three nominees, misrepresenting the records of each. Russell Feingold criticized Cook and Roberts, and then when a vote seemed imminent, jumped in to take up more time criticizing Bybee. Joseph Biden said a few words. Dick Durbin said more than a few. Every Democrat who did more than sit at the table for a few seconds had the chance to say his or her piece.

After a few hours, Hatch was ready to call the vote, and suddenly the Democrats were having fits. Kennedy claimed that under the rules the committee couldn't vote unless it had the permission of at least one Democrat. Hatch responded that he had spoken with both Senate parliamentarians and had confirmed that it was his prerogative to call a vote when a quorum was present. That really got Kennedy going.

Kennedy objected, raised a point of order and insisted that a roll call vote was necessary to determine whether the committee could vote on the nominees. It wasn't fair to vote without Leahy present, Kennedy complained, even though Leahy had been there and left. Others of his party -- who were nowhere to be found -- had things they wanted to say, too. We need to "continue to talk and give others who are not here an opportunity to have the chance to make statements," he said.

Hatch tried to play nice
Hatch tried to play nice

With both of them raising voices, Hatch overruled the point of order, repeating that he had consulted the parliamentarians and that there would be a vote today. "I'm not going to put up with any more obstruction," he said. "I've waited all day," he added. If Democrats want to speak, they have an obligation to actually show up.

The few Democrats who were there got up and all filed out into the anteroom, leaving Hatch without the ten Senators needed for a quorum. He and the seven other Republicans sat waiting for Arlen Specter and Charles Grassley to return, but Leahy and a few other Democrats came back in as Specter showed up.

Cook, Roberts, and Bybee each received a vote, but not before Leahy repeated Kennedy's objections to each, and Hatch had to overrule them and proceed. In the end, Cook was approved 13-2 with several Democrats passing or voting present. Roberts was approved 14-3 with passes and presents, and Bybee 12-6 with the same. That they received some Democrat votes in the end isn't surprising; they're highly qualified nominees and a yes vote in committee can be used to claim that Democrats are being reasonable. After years of delay, of course.

Now, Democrats purport to be furious over Hatch's ruling from the chair. Minority Leader Tom Daschle took to the floor the next day to complain about high-handedness and a lack of respect for the minority. But Hatch did the right thing.

The attempt to block a vote was nothing less than an attempt to filibuster in committee. Hatch gave the Democrats plenty of time to speak on the nominations, and the committee is under no obligation to sit around waiting for members who decide they would rather do something else than take advantage of the opportunity to debate. He consulted with the parliamentarians to make certain he was acting within his legitimate authority, and he went ahead with the vote he'd scheduled to take place weeks ago.

Committee Democrats dislike President Bush. They may want to block every one of his court of appeals nominations that they refused to act on over the last two years. They may even be frustrated by the American people's decision to hand control of the Senate back to Republicans. But that is no justification for filibustering nominees on the floor or in committee, and when they decide to go to extremes, it's only reasonable for Republicans to defend their right to bring nominees to an up-or-down vote.

In fact, last week's attempt to filibuster in committee is part of a pattern. The unjustified filibuster against Miguel Estrada on the floor demonstrates their willingness to target even the most highly qualified and unobjectionable nominees. Roberts, targeted in committee last week, is one of the top appellate lawyers in the country. Cook is a well-respected justice on the Ohio Supreme Court. Bybee is a government attorney who is more than qualified for the bench. And there are many more nominees who are equally qualified -- and whom liberals are equally willing to oppose.

Most, if not all, of these nominees have the votes on the floor for confirmation; Miguel Estrada certainly has more than enough. When the Left can't make a persuasive case against a nominee, filibustering is now the weapon of choice.

Whether facing a filibuster on the floor or in committee, Republicans have an obligation to use every tool at their disposal if they are serious about confirming President Bush's nominees. Hatch made the right decision, and even if he cannot yet bring Estrada to a floor vote, it's refreshing to see three other filibuster attempts brought to a quick end.

John Nowacki is Director of Legal Policy at the Free Congress Foundation.

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