WASHINGTON (BP)–President Bush marked the two-year anniversary of his first judicial nominees May 9 by calling their treatment in the Senate a “disgrace,” while at the same time senators in his party considered plans and parliamentary tactics that could stop a filibuster with a simple majority vote.
Senate Democrats are filibustering two Bush nominees, Miguel Estrada and Priscilla Owen, both of whom have enough votes for confirmation but not enough votes to overcome a filibuster. Much of the criticism has been focused on the abortion issue. Estrada has refused to reveal how he would rule on abortion, while Owen’s past rulings on abortion — she denied minors’ requests for abortions — have received attention.
Both parties warn that other judges will be filibustered in the future.
Bush, speaking from the White House Rose Garden, called the confirmation process “broken,” saying that the framers of the Constitution “designed a system in which the president would nominate judges, and the Senate would vote up or down on the nominees.”
Because court vacancies are not being filled, Bush said, “… we are facing a crisis in the Senate and therefore a crisis in our judiciary.” His nominees have “waited for years while partisans searched in vain for reasons to reject them. The obstructionist tactics of a small group of senators is setting a pattern that threatens judicial independence.”
He criticized the actions by past Senate bodies, saying that during the administrations of his father, President George H.W. Bush, and President Clinton “too many appeals court nominees never received votes. And today the situation is worse than ever, making the need for reform greater than ever.”
Bush proposed a plan that, if agreed to by the Senate, a judge would give a one-year warning before retiring while the president and Senate worked to fill the vacancy. The Senate would promise to vote on judges within 180 days of their nomination. As outlined, the new judge would step in the same day the retiring judge steps down.
But plans among Republican senators are receiving far more attention. Republicans are considering rule changes and parliamentary tactics that could allow the Senate to confirm judicial nominees with a simple majority of votes — thereby avoiding a filibuster by Democrats. Because of the political fallout that would follow they are being called the GOP’s “nuclear” options.
A change of rules has the backing of Senate Judiciary chairman Orrin Hatch of Utah, The Hill newspaper in Washington reported. It also has the support of many conservatives, including Richard Land of the Southern Baptist Convention’s Ethics & Religious Liberty Commission; Jay Sekulow of the American Center for Law and Justice; and Gary Bauer, president of American Values.
“Sen. Hatch is absolutely correct in saying that the Democrats are engaging in a grotesque misuse of minority power,” Land told Baptist Press. “I would strongly encourage Sen. Hatch and his colleagues to do whatever is necessary to restore constitutional process in the Senate.”
Land said his opinion would be the same if Democrats were in charge of the Senate.
“This is not a partisan issue,” he said. “This is a constitutional issue. I would feel the same way if it were a Democrat president whose judicial nominees had been abused in this manner.”
Several plans are being considered to stop the Democrats’ filibusters, and Majority Leader Bill Frist of Tennessee released one May 9 that would allow Democrats to filibuster senators – but only for a limited time. The votes needed to stop a filibuster, currently 60, would decrease with each succeeding vote, and eventually would be trimmed to only 51. The rule change would apply solely to judicial nominees, leaving legislative filibusters unchanged.
Another plan, as outlined in The Hill’s May 7 edition, would require Republicans asserting that Senate Rule XXII — which outlines rules for filibustering — applies to legislation only and not to presidential nominees. Republican senators would appeal to the chair, arguing that the rule either does not apply to judicial nominees or that it is unconstitutional. If the chair agrees, a simple majority of 51 votes would be required to uphold the ruling. And even if the chair disagrees, the same 51 senators could override the ruling.
Hatch told The Hill that the current application of the rule to judges is unconstitutional. The rule should not, he said, be applied to executive branch nominees.
“The executive branch and the judicial branch are co-equal [with the legislative branch],” he told The Hill.
Twice in the history of the Senate, simple majorities have broken filibusters, The Washington Times reported, and both times it was an ugly scene. The last time was in 1975 when the Senate was debating civil rights legislation, the newspaper said.
The conservative American Center for Law and Justice released a 36-page report May 6 detailing the various options. It concluded that the GOP should flex its muscle and use its majority status to push through the nominees.
“[T]here is no constitutional objection against these steps, and there is substantial authority that undermines the likelihood of success of any challenge to them,” the report said.
It added that the “the ability of a majority of senators to fulfill their constitutional duty to provide advice and consent” to the president “is in jeopardy.”
Conservatives argue that the Constitution is clear when a super-majority of votes in the Senate is needed — for example, to convict during impeachment and to ratify a treaty — and that judicial confirmation isn’t one of them. They point to Article 2, which states in part that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court, and all other officers of the United States.”
Furthermore, they say, the Constitution gives the vice president the ability to break ties — an implication that simple majorities were intended to rule.
Said Land, “The Constitution does not [allow] the Senate to advise and obstruct, but either to advise and consent or advise and deny by voting down a nominee,” he said.
Democrats counter with Article 5, which says in part that each body “may determine the rules of its proceedings.”
“If there ever was a view, ‘We want everything,’ it’s shown by these temper tantrums,” Sen. Charles Schumer, D-N.Y., said, according to Newsday.
Senate rules can be amended only by a super-majority of the senators. The question, conservatives say, is whether Rule XXII applies to judicial nominees and whether the Constitution requires a simple majority for judicial confirmation.
“It is well past time that the grown-ups in the Senate do what is necessary to conduct the nation’s business,” the ERLC’s Land said.
Some of the proposals being floated would certainly lead to controversy. The ACLJ argued that it is better to solve the problem now than wait until a vacancy in the Supreme Court, when the controversy would only escalate. This “would make possible a smoother process of confirmation when vacancies there require the Senate to pass upon the President’s nominees to the Supreme Court,” it said in its report.
Some of the proposals are certainly controversial, but Land said action needs to be taken to stop the “unconstitutional” filibusters begun under Minority Leader Tom Daschle of South Dakota.
“The division is there, and it’s his party’s senators that have caused it,” he said. “I’m just delighted that the Republicans have decided to fight back.”