WASHINGTON (BP)–Senate Majority Leader Bill Frist said Nov. 11 that “one way or another” the Democratic filibustering of judicial nominees “must end” — boosting conservatives’ hopes that Republicans are considering a controversial rule change that would stop the strategy.
“The Senate cannot allow the filibuster of circuit court nominees to continue,” Frist, a Tennessee Republican, said in a speech to the Federalist Society, a conservative group. “Nor can we allow the filibuster to extend to potential Supreme Court nominees.
“… To tolerate continued filibusters would be to accept obstruction and to harden the destructive precedence established in the current Congress. With its judicial filibusters the minority has taken radical action, and now the damage must be undone.”
Senate Democrats have filibustered 10 of President Bush’s judicial nominees, and Frist said they have promised to block six more. Some legal experts call the filibustering of judicial nominees unconstitutional, saying that the Constitution permits only an up-or-down vote on judges, and that filibusters prevent the Senate from providing constitutionally mandated “advice and consent” on nominees.
Some conservative groups, including the American Center for Law and Justice, argue that Senate Republicans can change the rules and prohibit the filibustering of judges. The rule change, they say, would require only a simple majority vote. That vote might be easier to reach in the new session when Republicans increase their majority from 51 to 55 seats. It is possible that some moderate Republicans won’t support such a change.
While Frist did not mention a rule change during his speech, he did say that Senate rules “are not set in stone” and can change from time to time.
“One way or another, the filibuster of judicial nominees must end,” Frist said to applause. “The Senate must do what is good, what is right, what is reasonable and what is honorable. The Senate must do its duty. And when we do, we will preserve and vindicate America’s founding principles for our time and for generations to come.”
Jay Sekulow, chief counsel of the American Center for Law and Justice, praised Frist’s remarks.
“This is exactly what we were looking for from the majority leader,” Sekulow said on his radio program Nov. 12. “… I think that there is no doubt that we have got the momentum in our direction for the rule change.”
The ACLJ is working on a memorandum outlining how Senate rules could be changed, Sekulow said, adding that the memorandum will be given to GOP leaders.
“There are two options that are being looked at, both of which are constitutional,” Sekulow said. “… With the Supreme Court vacancies looming [and] with the chief justice’s illness, there’s a lot of talk about the need for this filibuster reform. I think we’re close to getting it.”
The rule change would be controversial, perhaps even rivaling the controversy that would surround a Senate hearing on a Supreme Court nominee. When the strategy was floated last year, some even called it the “nuclear option.”
Although Republicans increased their majority to 55 seats in the Senate on Election Day, they do not have the 60 votes needed to overcome a filibuster.
During the last two years Democrats have been able to filibuster 10 of Bush’s nominees — even though all 10 had enough votes for confirmation. For instance, in one attempt to break the filibuster, appeals court nominee Miguel Estrada received 55 votes, five short of the necessary 60.
Much of the opposition to Bush’s nominees has come from pro-choice groups opposed to the nominees’ supposed pro-life positions.
Frist called the Democrats’ tactics “radical” and “dangerous” and said it “must be overcome.” The filibustering of judges, he said, threatens the independence of the judiciary and the separation of powers.
“This is unprecedented in over 200 years of Senate history,” he said. “Never before has a minority blocked a judicial nominee that has majority support … on the Senate floor.
“The minority seeks nothing less than to realign the relationship between our three branches of government. The minority has not been satisfied with simply voting against the nominees, which of course is their right. They want to require a super-majority of 60 votes for confirmation, and this would establish a new threshold that would defy the clear intent of the framers.”
The Senate “faces a choice,” Frist said: “Either we accept this new and destructive practice, or we act to restore constitutional balance.”
Supporters of a rule change are not arguing that all filibusters are unconstitutional but only that filibusters on judicial nominees are. They 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.”
When the rule change was floated last year, Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, said he supported it.
“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 then.