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Senate hard-liners start new filibuster: Continuing to trash two centuries of precedent

By John Nowacki
web posted May 5, 2003

"Priscilla Owen will not be approved . . . people should understand that and not waste the time of the Senate."

That was the gist of Senator Harry Reid's announcement that the Democrats are now filibustering the Texas Supreme Court Justice's nomination to the U.S. Court of Appeals for the Fifth Circuit. It's the Democrats' second filibuster - they've been blocking a vote on Miguel Estrada's D.C. Circuit nomination since February. And it's another groundbreaking moment for the Democrats, who have already mounted the first filibuster of a circuit court nominee in the history of the Republic and are now simultaneously launching the second.

If you can believe the Senate Minority Whip, that's the most reasonable thing in the world. Observing that President Bush once owned a baseball team and that small percentages in that game make for a great record, Reid argued that Bush ought to be happy that only two of his nominees are being denied a vote.

Let's get this straight. The exceptionally well-qualified Miguel Estrada is supported by more than enough Senators for confirmation - including several Democrats - but is denied a vote because the hard-liners in the Democrat caucus know they haven't made their case. But that's only fair, right?

Owen and Bush are seen in the Oval Office of the White House on July 16, 2002
Owen and Bush are seen in the Oval Office of the White House on July 16, 2002

Then the exceptionally well-qualified Priscilla Owen, also supported by more than enough Senators for confirmation - including at least one Democrat - is denied a vote because, yet again, the hard-liners in the Democrat caucus cannot make their case. Why all the fuss?

Well, to begin with, this is nothing less than an attempt to rewrite the Constitution and toss out two centuries of precedent - a point Senator Kay Bailey Hutchison of Texas has been making since Day One of the Estrada filibuster. Wherever the Constitution requires a supermajority, it says so. Clearly. Confirmations only need a simple majority, and it's been that way since the Washington Administration. But filibusters cannot be broken without 60 votes, and the Democrat leaders have effectively said that, minority party or not, no one will be confirmed by a simple majority vote unless they decide it's okay.

Second, the Democrat leadership is fighting to keep the people's elected representatives from doing the will of those who voted them into office. Remember how the President's party is supposed to lose mid-term elections? There was a reason the American people handed Senate control back to the Republicans at the first opportunity: Democrat obstruction. And in his final campaign swing where he highlighted that obstruction, one of the first examples George W. Bush would raise each time was the Democrats' systematic obstruction of his judicial nominees.

Which raises a third point - these are hardly a couple of isolated cases, not that filibustering nominees can be dismissed so cavalierly to begin with. There has been a systematic obstruction of Bush's nominees, circuit court nominees in particular.

Five of his 11 original nominees - sent up on May 9, 2001, nearly two years ago - still have not had been confirmed. All of the first nominees put forward by former Presidents Carter, Reagan, Bush, and Clinton were confirmed, quickly.

During his first two years, when the Senate is usually more accommodating, President Bush saw just 53 percent of his circuit court nominees confirmed. In the same periods of their administrations, all of the previous four Presidents had much higher confirmation rates for the same level nominees. For Jimmy Carter, it was 100 percent. Ronald Reagan, 95 percent. George H.W. Bush, with a Democrat-controlled Senate, saw 96 percent confirmed. For Bill Clinton, with a Senate of his own party, the number was 86 percent.

Shortly after Bush's inauguration, liberal Democrats in the Senate announced that the President's nominees would have to pass a political litmus test. A little later, they declared that it was up to otherwise qualified nominees to prove they deserve confirmation, meaning a refusal to play the political game would not meet the new burden of proof. Many of the lucky circuit court nominees who received hearings found themselves subjected to campaigns of character assassination run by outside groups with lots of clout but no credibility, and with Judiciary Committee Democrats acting as willing accomplices in the attacks.

New York Senator Charles Schumer argues that this is all justified as part of a noble cause. "I would argue that we're checking an arrogance in the White House . . . [history] will look at this as fair," he recently declared on the Senate floor. That so-called arrogance is Bush's decision to nominate men and women who share his constitutionalist judicial philosophy instead of the "living, breathing Constitution" views endorsed by Al Gore.

A few weeks ago, columnist Robert Novak reported that some Republicans are tiring of the confirmation battles and that Democrat leaders like Ted Kennedy had counted on this all along. If those Republicans decide to fold, this is what they can look forward to for the remainder of Bush's presidency, regardless of whether that lasts one term or two. And these are just the battles over circuit court of appeals seats. Just imagine how the Democrats will handle a nominee to the Supreme Court.

Well. Harry Reid has told the Republicans what to do. The question is whether they're going to sit down and take it.

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

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