News Articles

Marathon debate on judicial nominees ends; GOP argues filibuster is unconstitutional

WASHINGTON (BP)–A 40-hour marathon debate on judicial nominees went into overtime but finally ended Nov. 14, with Democrats filibustering two more White House nominees and Republicans warning of an escalating crisis that threatens the chamber’s integrity.

A debate that began the evening of Nov. 12 ended the morning of Nov. 14 when Republicans stopped debate some 30 minutes shy of 40 straight hours and asked for a vote on three of President Bush’s appeals court nominees, all women. But their request for cloture — a technical term for ending debate — failed, and Democrats succeeded in increasing to six the number of filibustered judicial nominees.

Senate rules require 60 votes to overcome a filibuster, although Republicans argue that the Constitution prohibits a super-majority requirement for judges.

The debate originally was scheduled for 30 hours.

“A new precedent in American history is being set here in the Senate, and the American people need to pay attention to it,” said Sen. Mike Crapo, R-Idaho.

The three nominees had enough votes for confirmation but not enough to overcome the stall tactic. The tally for California judges Carolyn Kuhl and Janice Rogers Brown was 53-43 in favor of ending debate. The vote on Texas judge Priscilla Owen, who had been filibustered before, was nearly identical: 53-42.

Ben Nelson of Nebraska and Zell Miller of Georgia were the only two Democrats to vote in favor of cloture.

In a statement, Bush called the action “partisan” and said it is “inconsistent with the Senate’s constitutional responsibility and it’s just plain wrong. Once again, a partisan minority of Senators has thwarted the will of the majority and stood in the way of voting on superb judicial nominees.

White House spokesman Scott McClellan said the courts of appeal have an 11 percent vacancy rate and that the need for confirmations is great.

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, criticized Senators — such as Charles Schumer, D-N.Y. — who say a nominee’s ideology should be considered in their confirmation. Democrats fear that all of the filibustered judges are pro-life. Ideology, Land says, is tantamount to religious belief.

“Boiled down to its fundamentals, it is nothing less than a religious test for office and is, and has been, and always will be unconstitutional,” Land said in a statement.

The Senate debate was passionate at times and often centered on large posters meant to boost the respective party’s case. Democrats continually pointed to a poster showing the numbers “168-4” — meaning the number of Bush’s judges confirmed compared to the number of judges filibustered to that point. Republicans countered by saying the larger number includes district court judges, which hold less power than appeals court judges. Democrats are focusing their efforts on appeals court nominees, Republicans said.

The Republicans seem to be right on that. A chart in The Detroit News Nov. 7 showed that through his first two years, only 53 percent of Bush’s appeals court nominees were confirmed. Comparatively, President Clinton had 86 percent confirmed, the first President Bush 96 percent, President Reagan 95 percent and President Carter 100 percent.

Republicans had a sign reading “2,372-0” — which they said represented the number of judges confirmed since the filibuster went into effect compared to the number of judges filibustered up until this Congress. Filibustering judges, they said, is unprecedented.

Sen. Rick Santorum, R-Penn., warned Democrats what will happen when the roles are someday reversed.

“I plead with the members of the other side of the aisle to stop this,” he said. “I’ve got folks on our side of the aisle saying, ‘Don’t plead with them. Don’t plead with them. Let them do it. Because we’ll have our opportunity someday, and we’ll make sure there’s not another liberal judge ever, ever. … We’ll take all those activist judges they send up and we’ll shoot them down.’

“Is that what they want? Anybody who gives a political opinion on America no longer will be eligible for the judiciary? Is that what we really want here? Because let me assure you, as I live and breath, that’s what will happen.”

Sen. Minority Leader Tom Daschle, D-S.D., countered by saying Republicans bottled up President Clinton’s judicial nominees in committee.

“I find it incredibly remarkable that the very people who lament not getting a vote for those four were participants in the effort to deny 63 justices during the Clinton administration even a hearing,” he said. “Don’t tell me about a vote on the Senate floor. Don’t tell me about cloture. Tell me about those 63 who waited in some cases four years and never got a hearing. This is an ongoing practice that our Republican colleagues have been involved in for as long as they’ve been in the Senate.”

Crapo of Idaho disagreed with the Democrats’ comparison

“We’re talking about two very different things,” he said. “All judges nominated by any president must go to the judiciary committee and must make it through the [committee].”

Crapo said the first President Bush had 54 nominations that didn’t make it through the judiciary committee, while President Clinton had at least 41. He also noted that Senators could sign a discharge petition and pull judicial nominees out of committee.

None of the Clinton nominees that reached the floor were filibustered, Crapo said.

During the 40 hours both parties debated the meaning of Article II of the Constitution, which says the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint” judges. Republicans said the Constitution is clear when a super-majority is required for confirmation — such as for a treaty. Because it is silent on the issue of super-majorities for judges, they say, it is not required.

“Instead, it was understood until this Congress that our Founding Fathers and the Constitution intended the advice and consent process in the Senate to require a majority vote and not to be filibuster-able,” Crapo said.

Democrats disagreed, saying the fact that judges are lifetime appointments requires a high standard.

“If we decide that this candidate or that candidate is not worthy of a lifetime appointment, we in my judgment have an obligation,” said Byron Dorgan, D-N.D. “That obligation under advice and consent is to weigh in with our opinion.”

The Senate did not vote on a rules change proposal that gradually would reduce the number of votes needed to end a judicial filibuster until it reaches 51. Sen. Bill Frist, R-Tenn., and Miller sponsor this rule change.

    About the Author

  • Michael Foust