The Fairness Option

>From the April 25, 2005 issue: Listening to Democrats and reading
editorial commentary, some Americans might think that the three-fifths
Senate vote required to end debate was dictated by James Madison on his
deathbed. Hardly.

The Weekly Standard
04/25/2005
Volume 010, Issue 30
For the Editors

By Philip Terzian

The Senate Majority Leader, Bill Frist, and his Republican colleagues,
face a momentous decision: Do they allow the Democratic minority to
prevent the Senate from voting on judicial nominees, or do they invoke
the “nuclear option” — that is, change the rules so a simple majority
of 51 can force a vote?

For the past few months, Frist has been applying public pressure: first,
by routinely complaining about the Democratic filibuster against
President Bush’s nominees for the federal appellate bench; and second,
by suggesting that “all options are on the table.” Frist’s threats have
not impressed Democrats, who see no benefit in curtailing their
obstructionist tactics. From their point of view, talking nominees to
death keeps conservatives out of the federal judiciary, and weakens the
Bush administration. And Democrats argue that changing Senate rules
would injure the spirit of harmony on Capitol Hill.

Excuse us for a moment while we gag over that one. Simply stated, it is
the Democrats who have violated the standards of behavior in this
episode. They have maligned distinguished, well-qualified judges with
whom they disagree as “radical” and “outside the mainstream” of judicial
thought when it is, in fact, the Democrats who hover at the fringes of
extremism. Senate minority leader Harry Reid has a soft voice and
professorial manner, but he is an accomplished name-caller (Alan
Greenspan is “one of the biggest political hacks we have in Washington”)
and seldom hesitates to misrepresent the views of judicial nominees.
It’s impossible to reconcile the ideal of comity with summarily denying
nominees the courtesy of an up-or-down vote on the Senate floor.

That is why Frist needs to concentrate his energies, organize the
majority, and face down the challenge posed by Harry Reid and his
troops. But let’s call this “nuclear option” by its proper name: the
fairness option. Senate Democrats are the ones who have, in effect, gone
nuclear–requiring a supermajority of 60 senators to approve judges.
Listening to Democrats, and reading editorial commentary, Mr. and Mrs.
America might have gained the impression that the three-fifths Senate
vote required to end debate was dictated by James Madison on his
deathbed. Hardly. Cloture is a Senate rule, not a constitutional
requirement. It was President Woodrow Wilson, frustrated by the Senate’s
indulgence of endless talk, who promoted the adoption of Rule XXII,
mandating a two-thirds vote for cloture. Sixty years later, Senate
Democrats, led by Robert Byrd, reduced the two-thirds requirement to
three-fifths. The sacred principle of requiring 60 votes to end a
filibuster is neither an ideal of the Founders nor a historic precedent:
It is a procedural rule less than 30 years old. And, in the long history
of the United States, filibusters have never been used by a minority
systematically to block a president’s judicial nominees.

It is true that the filibuster preserves one option for the minority
against the rule of the majority party, and may allow a minority to
focus the attention of the country on momentous issues before the Senate
acts. But it is also worth noting that this procedure has not always
been used for constructive purposes. In recent times, the filibuster was
used most promiscuously to frustrate civil-rights legislation: In 1957
Strom Thurmond held the floor for 24 hours for that purpose–a record
which still stands — and in 1964, 18 Democrats and one Republican
blocked the Civil Rights Act for two-and-a-half months.

That’s the history. The politics is even more compelling. No Senate
Republican should misunderstand the Democrats’ motive in blocking the
nominations of, among others, Justice Janice Brown of the California
Supreme Court, Judge Henry Saad of the Michigan Court of Appeals, or
Texas Supreme Court Justice Priscilla Owen: It is power, pure and
simple. These, and other jurists, have been nominated by President Bush,
favorably evaluated by the American Bar Association, have testified
before and been endorsed by the Judiciary Committee, and await final
judgment in the Senate. If the Democrats manage to prevent a vote for
the sake of political obstruction, they will set a precedent more
momentous than a change in Senate rules.

The power of any president, Democrat or Republican, to appoint judges
would then depend not on a formal vote of the Senate, but on the consent
of 40 partisans determined to inflict maximum political damage. So the
stakes for the Bush administration could not be clearer: If Harry Reid
and the Democrats can abuse Senate rules to stop their colleagues from
voting on appellate nominees, Supreme Court appointments will be next on
the list. And which is more important: the right of any president to
appoint federal judges, and the right of nominees to a Senate vote; or
some spurious notion of “comity” on Capitol Hill?