the Constitutional Option Viable to Break Partisan Filibusters
Against Judicial Nominees?
in our nations history has a judicial nomination to a federal
appeals court been defeated by a filibuster, a parliamentary tactic
that requires 60 affirmative votes rather than a simple majority
for confirmation by the U.S. Senate. Never, that is, until now.
Democrats are using this unprecedented obstructionist tactic to
block confirmation of six of President Bushs appeals court
nominees, and it is possible rather, likely we will
see as many as 40 simultaneous partisan filibusters against the
Presidents judicial nominations prior to the November elections.
This at a time when our nations courts are in dire need of
judges to fill longstanding vacancies that have hindered the efficient
administration of justice.
obstructionism, which threatens the independence of the federal
judiciary, has sparked significant discussion on whether and how
to eliminate filibusters of judicial nominations since they require
what many believe to be an extra-constitutional super-majority in
order for a judicial nominee to win confirmation. In fact, for more
than a year, Senate Republicans have contemplated invoking whats
been commonly referred to as the "Constitutional"
or "Nuclear" Option to accomplish that goal.
Leader Tom Daschles recent announcement that he will block
all judicial and executive branch nominations unless the White House
agrees to forgo its constitutional prerogative of recess appointments,
this discussion has been lifted from mere contemplation to urgent
But is the Constitutional
Option viable and politically attainable this year?
Option is nothing more than a Senate rules change that would, in
this case, end the filibusters by restoring the "Advice and
Consent" process to what the Founding Fathers intended it to
be a requirement of 50 plus one votes, or a simple majority,
for a judicial nominee to win confirmation. But making this change
would necessitate some creative and admittedly controversial, however
permissible and precedented, parliamentary maneuvering by a majority
of Senators and, frankly, a lot of moxie on the part of all
routine used to change the Senates rules is for the bodys
Rules Committee to propose the change and for the full Senate to
vote on it. However, in this case, Democrats would likely filibuster
the rules change, requiring not 60, but 67 votes to cut off debate
and proceed to an up-or-down simple majority vote. Clearly, this
is not attainable as it is nearly impossible to get 67 votes for
anything in the U.S. Senate (even if its "for the children").
That is where
the so-called Constitutional Option comes into play. While there
are many different versions of this option, the most talked about
approach would be for a Republican Senator, most likely Majority
Leader Bill Frist, to raise a point of order that the filibusters
being used by the partisan minority to block judicial confirmations
are impermissible. Then, the Chair, most likely Vice President Dick
Cheney, would sustain the point of order, forcing Democrats to object
to his ruling. As pointed out by Alex Bolton in The Hill
newspaper, Republicans could then counter "by offering a non-debatable
motion to table the objection," which would only require a
simple majority to pass thus, circumventing the 67-vote requirement
that would be needed to break opposition to the rules change.
pull this off, 51 Senators would have to be on board. And despite
the leaderships best efforts thus far led by Senators
Frist and Rick Santorum and Judiciary Chairman Orrin Hatch
support for this plan has fallen short of that number.
Why, you ask?
want to preserve their right to filibuster judicial nominees when
a Democrat is elected President. But there is a very good reason
the current filibusters are so unprecedented. Simply put, they are
wrong and constitutionally invalid. They would be wrong and constitutionally
invalid regardless of which party initiated the obstructionism.
Ever since President
Bush nominated his first group of men and women to the federal bench
in May of 2001, Republicans have vigorously argued these points,
being able to maintain the high ground throughout this debate as
there is simply no precedent of Republicans or until relatively
recently, Democrats using filibusters to block multiple judicial
nominees from taking the federal bench.
have lost sight of with their current campaign is the fact that
these qualified men and women, who have been willing to put their
careers on hold and expose themselves and their families to crass,
politically-motivated attacks in order to serve their country, are
people not political pawns that can be held hostage to appease
a well-funded, liberal special-interest base.
Estrada, the "well-qualified" nominee to the U.S. Court
of Appeals for the D.C. Circuit who withdrew his nomination after
nearly three years of Democrat filibusters and character assassination?
According to Democrat obstruction memos first released by the Wall
Street Journal, his nomination was opposed simply because "he
is Latino" and could have been a candidate for the Supreme
Court once a vacancy arises. He is the epitome of the American dream.
Moving to this country at age 17, knowing virtually no English,
he worked hard and graduated with honors from Harvard Law School
and is now considered by Democrats and Republicans alike to be one
of the most brilliant appellate attorneys in the country.
Or, what about
Janice Rogers Brown, another nominee to the U.S. Court of Appeals
for the D.C. Circuit and another filibuster victim? Democrats argue
their filibuster is justified because she is "out of the mainstream."
She is an African-American woman, who worked her way through law
school as a widowed mother and currently serves on the California
Supreme Court. She was recently re-elected to that court by 76 percent
of the vote in a state-wide election. Out of the mainstream?
animus has always plagued the appointment and confirmation of federal
judges. But the boundaries of that animus were exceeded when Senate
Democrats chose to use "all means necessary" even
unconstitutional filibusters, supported by false character assassination
and downright lies as their justification. Nevermind that their
actions have our Founding Fathers rolling over in their graves.
Option is probably the only means of restoring some civility and
effectiveness to the judicial confirmation process. And, it would
enable all 100 Senators to exercise their constitutional obligation
of "Advice and Consent" by voting yea or nay on every
judicial nominee brought before them precisely what the Founders
Is it obtainable?
Probably not. Those Republican Senators who want to preserve their
"right" to filibuster Democratic nominees are unlikely
But it's our
job to remind them that retaliatory filibusters used to block judicial
nominees is not a "right," as everything about it is wrong
for the very reasons they, themselves, argue today.
May 13, 2004]