December 15, 2004,
Democrats have waged an "unprecedented" campaign against Bush's judicial nominees to quote an accurate observation that Democratic senator Jon Corzine made in a fundraising letter. They have denied up-or-down votes to several Bush nominees who had the support of a majority of senators. They have made scurrilous charges against nominees. Priscilla Owen was said to be an enemy of women because, as a judge in Texas, she had interpreted a state law to grant parents a stronger right to be notified of their children's abortions than Democrats would like. Democrats sought to breach the confidentiality of Miguel Estrada's work for the Justice Department in a desperate search for embarrassing material on him. The effect of the Democratic campaign, and probably the intent, has been to intimidate some qualified conservative jurists from putting themselves in the line of fire.
So we sympathize with those Republicans who have been proposing to change the Senate rules to make it easier to confirm nominees who have majority support. Nevertheless, we think the idea is a mistake.
Under current Senate procedures, it takes 60 votes to end a debate and move to a vote. It takes 67 votes to change the procedures. Some conservatives argue that the 60-vote rule to cut off debate, when applied to judicial nominations, violates the Constitution. The "advice and consent" of the Senate, they say, implies that it should only take a majority of the Senate to confirm a judge. The use of the filibuster effectively creates a supermajority requirement, which, on this argument, is unconstitutional. It is, in our view, an implausible argument. The Constitution does not forbid the Senate from setting its own procedures.
political accountability for filibusters
instead of a rules change.
Conservatives are on stronger ground in arguing that a simple majority of senators should be able to rewrite the rules. But whether it would be prudent for Republicans to act on this insight is another question.
It may be wiser to insist on political accountability for filibusters of judicial nominees than to change the rules to prevent them. In the 2002 and 2004 elections, Republicans took Senate seats from the Democrats. The Democrats' filibusters against Bush's judge picks were an issue in all of them.
The consequences might be worse for the Democrats in the case of a Supreme Court vacancy. Only small portions of the electorate have paid attention to the political battles over appellate-court nominations. The public will be paying attention during a Supreme Court fight. Many voters will root for Bush's nominee and many will root against. But it is unlikely that middle-of-the-road voters will have much tolerance for attempts to block a vote.
Consider the Ashcroft precedent. Liberals were incensed over Bush's nomination of John Ashcroft to be attorney general. They were energized by their strong showing in the 2000 Senate elections and angered by the Florida recount. They demanded a filibuster of Ashcroft. The Democratic Senate leadership refused to take this step, rightly calculating that the public reaction would be negative.
The Democrats will probably not be able to resist the liberal pressure to wage a filibuster when a Supreme Court vacancy arises. But at some point, we strongly suspect that the filibuster would collapse. That collapse would do more for Republicans and for the cause of confirming conservative judges than a rules change. (A rules change might demoralize Democrats, but it would also enrage them. An unsuccessful filibuster would just be demoralizing.)
Republicans could change the rules, but they have no constitutional obligation to do so. And the best moment for changing the rules, during a Supreme Court fight, would also be the moment when a change would be least necessary. So let the Democrats filibuster and pay the price.