Is the ‘Constitutional Option’ Viable to Break Partisan Filibusters Against Judicial Nominees?

Never before in our nation’s 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.

Currently, Senate Democrats are using this unprecedented obstructionist tactic to block confirmation of six of President Bush’s appeals court nominees, and it is possible — rather, likely — we will see as many as 40 simultaneous partisan filibusters against the President’s judicial nominations prior to the November elections. This at a time when our nation’s courts are in dire need of judges to fill longstanding vacancies that have hindered the efficient administration of justice.

The partisan 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 what’s been commonly referred to as the "Constitutional" or "Nuclear" Option to accomplish that goal.

With Minority Leader Tom Daschle’s 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 necessity.

But is the Constitutional Option viable and politically attainable this year?

The Constitutional 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 51 Republicans.

The traditional routine used to change the Senate’s rules is for the body’s 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 it’s "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.

To successfully pull this off, 51 Senators would have to be on board. And despite the leadership’s 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?

Some Republicans 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.

What Democrats 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.

Remember Miguel 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?

Yes, partisan 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.

The Constitutional 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 intended.

Is it obtainable? Probably not. Those Republican Senators who want to preserve their "right" to filibuster Democratic nominees are unlikely to budge.

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.

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