April 26, 2005
Keep up the pressure
Just after finishing my essay, "Sparing America's courts", for today's edition of The Star, news wires carried a story about Senate Minority Leader Harry Reid, D-Nev., offering Senate Majority Leader Bill Frist, R-Tenn., a possible compromise in the judicial nominee-filibuster standoff.
The offer: If the Republicans withdraw one nominee and back off plans to change Senate rules on filibustering, Democrats would help confirm at least two of President Bush's blocked nominees. Frist's response Tuesday was the equivalent of "drop dead."
Frist said he would accept no deal that would block the Republican majority from confirming judicial nominees approved by the Senate Judiciary Committee. That's a far cry from when he voted in 2000 in favor of filibustering over President Clinton's nominee, Richard Paez, to the 9th U.S. Circuit Court of Appeals. Frist's logic on what happened then is a little fuzzy.
When questioned about it on CBS News' "Face the Nation" on Nov. 21, 2004, Frist said, "Filibuster is used and it's called cloture." Perhaps he should bone up a bit on parliamentary procedures.
A filibuster is a tactic used to block or delay a vote. Cloture is the procedure by which debate is closed and an immediate vote on the subject at hand is taken. The problem Frist has been running into is that he can't get the necessary 60 votes (under the Senate's current rules) to invoke cloture. That same thing happened in 2000, when those who wanted to filibuster Paez could not muster the 41 votes to deny cloture being invoked. In fact, cloture was invoked by an 85-14 vote, with one senator not voting, and Paez was approved on a 59-39 vote, with two senators not voting. At the time, Republicans held a 54-46 majority in the Senate.
Frist also was wrong when he said on "Face the Nation" in November that the filibuster has not been used to kill nominees: "There has never been in the history of this country until the Democrats started using this tool to filibuster and kill judges." He convienently forgets that in 1968, the GOP led a successful filibuster against President Johnson's wish to elevate Associate Justice Abe Fortas to the Supreme Court's chief justice. In its March 18 edition, The Washington Post details what happened and includes some rebuttals to Republican attempts to pooh-pooh that filibuster.
I'm glad the Republicans are sticking their foots in their mouths over the filibuster issue and I'm glad they are being intransigent about compromising on the judicial nominee-filibuster issue because I don't believe the Democrats should be offering a compromise on this. The filibuster exists for this very reason to keep an out-of-control majority from running roughshod over the minority party in power.
Yes, filibuster can be used in destructive ways, as conservative Southern Democrats did during the 1940s and 1950s to keep civil rights legislation from being enacted. They stood up not for principle but to keep discrimination in place.
This time, the threat of filibuster is being used out of principle to ensure that the judicial system has a diversity of judges, to keep religious groups from trying to apply a religious litmus test on judicial nominees and to protect the rights of judges to be independent arbiters of legal questions. Anything less would undermine the principles under which this nation was formed.