Joe Mariani

Filibustering Judges: Hijacking Presidential Powers?
June 17, 2003

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
- Constitution of the United States, Article II, Section 2

Are a minority of Democrats trying to circumvent the Constitution, in effect hijacking the power granted to the President by law to appoint Federal judges for themselves? Presidential judicial nominees need only 51 votes to pass the requisite Senate "consent" (as votes are a simple majority unless specified). However, since May of 2001, a group of Democrats led by Senator Tom Daschle and Pat Leahy have been continuing a filibuster -- the process of blocking a vote from being taken on any issue until 60 Senators have voted to end it -- to prevent a vote being taken to raise Miguel Estrada to the US Court of Appeals. Similarly, votes on the nominations of Charles Pickering and Priscilla Owens to the US Court of Appeals are being blocked by filibuster. Several more of President Bush's nominees are coming up for a vote soon, and those votes are expected to be filibustered as well. The Democrats only need to have 41 votes to continue the filibuster and prevent the issue from coming to a vote indefinitely. This has never happened before in the case of judicial nominees, though it had been threatened a few times, most recently during the Clinton years by Republican Senators. Two notable Sentors had very strong words to say about the idea of filibustering a judicial nominee at that time:

As Chief Justice Rehnquist has recognized: 'The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down.' An up or down vote, that is all we ask.
- Senator Tom Daschle (D-SD), Congressional Record, 10/5/1999.

I find it simply baffling that a Senator would vote against even voting on a judicial nomination...
- Senator Tom Daschle (D-SD), Congressional Record, 10/5/1999.

Hispanic or non-Hispanic, African American or non-African American, woman or man, it is wrong not to have a vote on the Senate floor.
- Senator Tom Daschle (D-SD), Congressional Record, 10/28/1999.

I have stated over and over again... that I would object to and fight against any filibuster on a judge, whether it is somebody I opposed or supported.
- Senator Patrick Leahy (D-VT), Congressional Record, 6/18/98 at S6521

But I think they have given the President of the United States the benefit of the doubt, and if the person is otherwise qualified, he or she gets the vote... Vote them up or down."
- Senator Patrick Leahy (D-VT), Congressional Record, 9/21/1999

Now, every Senator can vote against any nominee... But it is the responsibility of the U.S. Senate to at least bring them to a vote.
- Senator Patrick Leahy (D-VT), Congressional Record, 10/22/1997

Did I miss something here? Is it true that the two most vocal opponents to filibustering are, in fact, now leading the filibuster against Miguel Estrada, Priscilla Owen and Charles Pickering? Why did they change their minds so drastically about filibustering judicial nominations? Obviously, this is nothing more -- and nothing less -- than partisan politics on a grand scale. It's the exact same tactic used by the Democrats in Texas who crippled the workings of government for days rather than submit an issue to an honest vote that they feared they would lose. It's about power, it's about winning, rather than the issues. And who loses when they play these games? The American people.

Worse than that... these filibusters are in name only! The filibustering Senator (or series of Senators) is supposed to take the floor and speak until the vote to end his speech is taken (called cloture). He or she doesn't even have to speak about the topic at hand -- one Senator is said to have filibustered by reading a phone book. Former Senator Strom Thurmond holds the record for an actual filibuster by a single Senator -- he spoke for a little over 24 hours in 1957. I may not agree with his segregationist views, but I have to admire the sheer stamina of the man -- and his leather lungs. The current filibuster, however, has gone on for two years because... NO ONE is actually speaking at all! Daschle, Leahy and their cronies merely announced that they were filibustering to prevent a vote being taken, and that was that. Two years? This is a ridiculous mockery of the Constitution, and should be considered a serious violation of the system by which the government operates! What kind of people are these Democrats, to declare themselves opposed to filibustering a judicial nominee... and then to carry out such a filibuster themselves, and without even doing the work?

Now we may possibly be facing a worse crisis, and a worse misuse of the system. It is possible that one or even two Supreme Court Justices (Rehnquist and O'Connor) may step down at the end of June, leaving vacancies on the Supreme Court which only the President has the power to fill, with a 51-49 vote of consent from the Senate. Does anyone doubt that Daschle, Leahy and the rest will filibuster to force a 60-40 vote just to bring the nominees to a vote at all if the nominees don't meet with their approval? Letters have already been written to President Bush to let him know that any nominations he makes will have to be "compromise" nominees, with the threat of filibuster hanging in the air. What do you call that but outright, flagrant blackmail of the President of the United States?

As Tom Daschle himself said, "It is wrong not to have a vote on the Senate floor". As Pat Leahy said, "It is the responsibility of the U.S. Senate to at least bring them to a vote." Do your jobs, ladies and gentlemen. Fulfil your responsibilities. Stop playing your petty political games with the justice system of the United States. An up or down vote, that is all we ask.


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