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In their latest attempt to squash the Constitutional Option, Senate Democrats have resorted to yet another fabrication. 

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Lies, Damn Lies and the Fight Over Judicial Confirmations

In today’s political climate, partisan street brawls are the norm, not the exception, in our nation’s capital.  Whether the issue is Social Security reform, the war in Iraq, a national energy plan or which forgotten somebody should appear on the next commemorative stamp, Washington has become notorious for its bloody battles.

For the most part, fact-based substantive arguments are usually presented by both sides to support their heated rhetoric.  But occasionally an issue comes along that makes one side so desperate, so frantic, that lies and misinformation — not facts — dominate their messaging. 

Such is the case in the current battle royale over judicial confirmations in the Senate.

It’s becoming more and more apparent that Majority Leader Bill Frist will indeed act to finally end the unprecedented filibusters being used to block fair up-or-down votes on the President’s judicial nominees.  And with nowhere else to turn, Senate Democrats and their special interest counterparts have resorted to lies and distortions in an attempt to sway public opinion against the “Constitutional Option,” or as it’s more dubiously called, the “Nuclear Option.”

Recently, opponents of President Bush’s judicial nominees have even implied that the move to eradicate judicial filibusters would eliminate all filibusters, including legislative filibusters.  In fact, People for the American Way, the Hollywood-funded group leading the charge against the President’s judicial nominees, launched a multi-million dollar ad campaign suggesting just that. 

But the group out of La-La Land knows full well that nothing could be further from the truth. 

The Constitutional Option would leave untouched any Senator’s ability to filibuster legislation, while at the same time restoring Senate tradition and Constitutional sanity to the broken judicial confirmation process by allowing all 100 Senators to exercise their obligation of “Advice and Consent.”  As Senator Frist recently stated, "None of our proposals to give judicial nominees fair up-or-down votes would limit the filibuster on legislation or bills. A lot of these television ads you're seeing are flat wrong. The fact of the matter is that nothing will ever prevent 'Mr. Smith' from going to Washington and taking a stand on the Senate floor. And we will guarantee he can vote to confirm or reject judicial nominees!"

In their latest attempt to squash the Constitutional Option, Senate Democrats have resorted to yet another fabrication.   Reading straight from a memo handed to them by their special interest friends, Democrats are now saying that “use of the filibuster against judicial nominations has a long history.”  As evidence, they argue that the nominations of Richard Paez and Marsha Berzon, two of President Clinton’s picks to serve on the Ninth Circuit, were subjected to Republican-led filibusters. 

Not so. 

In 2000, then-Senate Majority Leader Trent Lott used cloture motions to overcome individual Senators’ holds on Judge Paez and Judge Berzon and to move their nominations to up-or-down votes on the Senate floor.  Both were confirmed and sit on the Ninth Circuit today.  Indeed, Judge Paez received 59 votes, one shy of the 60 votes Senate Democrats are requiring now.

As Senator John Cornyn recently pointed out, “If these nominees are their examples of filibusters, it is then fair to ask that the Senate treat President Bush’s nominees the same: by having an up-or-down vote on their nominations.”

The simple truth is that, until recently, the filibuster was never used to defeat a judicial nominee who enjoyed majority support in the Senate.  Even Robert Bork, whose confirmation to the U.S. Supreme Court was defeated, received the courtesy of an up-or-down vote on the Senate floor.  Moreover, in addition to Judge Paez, several “controversial” nominees have been confirmed with less than 60 votes, including Supreme Court Justice Clarence Thomas, who received 52 yea votes. 

For four years, Senate Democrats have conducted a campaign of misinformation and character assassination to block many of President Bush’s judicial nominees.  Unfortunately, these tactics are nothing new in politics.  What is new, however, is the minority’s unprecedented abuse of the filibuster to deny many of these highly qualified men and women fair consideration in the Senate.

And, despite the rhetoric and lies, opponents of the Constitutional Option know this all too well.

In 1998, Senate Judiciary Committee Ranking Member Patrick Leahy, a leading proponent of the Democrats’ current filibuster strategy, opined on the Senate floor, “I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her down.”

Senator, we couldn’t agree with you more.

[Posted April 28, 2005]