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Q&A: What is the judicial filibuster controversy all about?

NASHVILLE, Tenn. (BP)–Christian conservatives are taking an increasingly public role in the Senate battle over judicial filibusters. Following is a list of commonly asked questions, with answers, concerning the issue:

— Why are Christian conservatives involved?

Because of the role the judiciary has played in shaping the culture in recent decades — from legalizing abortion to removing public references to God. Conservatives fear the federal courts eventually will legalize same-sex “marriage.” Conservatives see a chance to roll back decades of liberal rulings if enough conservative judges are placed on the federal courts. They see a window of opportunity they haven’t had in years — with a conservative in the White House and conservatives controlling the Senate.

— Why do Christian leaders say Senate liberals are targeting “people of faith”?

During confirmation hearings on President Bush’s nominees, Democrats have criticized some of the nominees for their “deeply held beliefs” — a reference in many instances to their pro-life views. Republicans note that in Catholic nominee William Pryor’s case, those deeply held beliefs were his religious beliefs. Some Republicans openly wondered if a Catholic nominee who adhered to the church’s teachings on abortion could ever win confirmation.

— What is a filibuster?

A filibuster is a technique used in the Senate to block action (legislation, etc.) by refusing to end debate. In theory, a filibuster could continue 24 hours a day until the filibustering party basically gives up (which occurred in the 1950s and 1960s during debate over civil rights legislation). Nowadays, though, senators almost always choose instead to move on to other legislation, instead of fighting the filibuster with round-the-clock sessions. Under senate rules one senator can announce that a vote will be filibustered, effectively allowing any senator to force a measure to be passed with 60 votes instead of a simple majority.

— What does it take to end a filibuster?

A three-fifths vote (60 votes). This is called a vote to invoke “cloture.” If the three-fifths vote threshold is not met, then the filibuster continues. But if the cloture vote is successful, then a timed limit is placed on debate.

— What is the current controversy all about?

Senators disagree whether the filibuster should apply to the president’s judicial nominees — that is, nominees to U.S. district courts, appeals courts and the Supreme Court. Democrats have filibustered 10 of President Bush’s nominees to the federal appeals court. On most of them, Democrats have objected to the nominee’s pro-life rulings and/or writings.

— What is the Republican position on judicial filibusters?

Republicans say filibusters on judicial nominees are unconstitutional. They cite the Constitution in saying that the nation’s founders were clear when super-majorities were required in the Senate (for instance, to ratify treaties). Republicans say the Constitution says nothing about super-majorities for judicial nominees, and therefore, only a simple majority is required. Article II, Section 2 requires only “advice and consent” of the Senate on judicial nominees, they say.

— What is the Democrats’ position?

Democrats say the filibuster is a 200-plus-year-old time-tested technique that prevents the majority party from ramming its agenda through without any debate. In this instance, they say, the filibuster prevents judicial nominees who are out of the mainstream from being confirmed. They also say that Article I, Section 5 of the Constitution gives the Senate the ability to make its own rules.

— What are Republicans trying to do that is so controversial?

Change the rules. Republican leaders, led by Majority Leader Bill Frist, want to use a parliamentary technique that would require a simple majority of 51 votes to rule that filibusters do not apply to judicial nominees. If that happens, then nominees could be confirmed with only 51 votes, and not the 60 votes now needed to overcome a filibuster. The technique is so controversial that Democrats call it the “nuclear option.” Republicans call it the “constitutional option.” The two sides have tried to reach a compromise, but so far to no avail.

— Do Republicans have the votes?

No one knows, although they likely are very close. Republicans have 55 seats, Democrats 44. There is one independent, who almost always votes with the Democrats. At least three Republicans likely will break ranks and vote against the rule change. Several, though, remain uncommitted. More than likely, only one Democrat will consider voting with the Republicans — Ben Nelson of Nebraska. If Republicans reach 50 votes, Vice President Richard Cheney could break the tie with a vote for the rule change.

— How many judicial nominees have been filibustered?

Ten — all on the appeals court level. The number may sound small, but it comes out to roughly one-fifth of Bush’s nominees to the appeals courts.

— Why do Democrats object to the nominees?

They say they are out of the mainstream, pointing to their views on abortion, civil rights, the environment and government. Mostly, though, the issue has been abortion. Two pro-choice groups — Planned Parenthood and NARAL Pro-Choice America — have led the campaign against the nominees.

— Have judicial nominees ever been filibustered?

Yes, but only once, according to historians. In the late 1960s Republicans filibustered Abe Fortas, who had been nominated by President Johnson to be chief justice. Fortas, though, did not have even majority support from the Senate. Republicans say the current-day situation is the first time in the nation’s history that judicial nominees with majority support have been filibustered.

— What implications does a possible rule change have on the Supreme Court?

Significant — assuming the rule is changed. Of the nine justices, two justices are in their 80s and two more are in their 70s. So, there could be several openings in the near future. Many believe Chief Justice William Rehnquist, 80, may retire this summer. Without the rule change, Democrats will be able to filibuster any Supreme Court nominee until Bush submits one they find acceptable. But without the filibuster, Republicans will need only a simple majority for confirmation. The Supreme Court is the crown jewel of the nation’s ideological debate, having legalized abortion, banned organized school prayer and overturned anti-sodomy laws all within the past few decades.

    About the Author

  • Michael Foust