Getting Ready to Go Nuclear
A few days ago, the Senate Judiciary Committee sent the William Myers nomination to the floor of the Senate, where it may be some time before he is given the traditional and constitutional privilege of an up or down vote on his nomination. Myers is the first of 10 nominees who are being blocked by Democrats for political reasons.
The Senate Democrats, now under Minority Leader Harry Reid, are refusing to close debate on these nominations, therefore requiring a supermajority of 60 votes to confirm a judge, as opposed to the 51 votes required by the Constitution. This is the first time in the history of the United States that a minority party has used the filibuster rule to block judicial nominees – despite the fact that these nominees have majority support and would be confirmed if the vote were allowed to be taken.
The Democrats claim that they are blocking these nominations for a number of reasons.
In public they attack the nominees’ qualifications. For example, critics claim that Federal circuit court judge Terrence Boyle is anti-civil rights and that in 20 years on the bench his rulings have been reversed over 150 times. In reality, as Senator Graham has pointed out, Boyle has only been reversed 92 times – a reversal 7.5 percent well below the national average of 9.7 percent.
In private (as leaked memos reveal) Democrats view Bush’s nominees as “Neanderthals” and “Nazis” and have a special bent against minority candidates – Justice Janice Brown, a black, female Conservative is being blocked, as was Miguel Estrada. (Estrada was described by Senate Judiciary Committee member Dick Durbin as “especially dangerous because he is Latino”). After all, it certainly would be dangerous for Democrats if minority members in a position of power happened to be Conservative. Estrada has now withdrawn his own nomination after too many years of waiting to be confirmed.
Democrats claim that they are justified in their filibustering. For one thing, they say that Republicans did the same thing to Justice Abe Fortas in 1968. This is not true, as Senator Cornyn explains, because “The Congressional Record makes clear that a confirmation vote would have likely failed by a vote of 46-49. Moreover, Fortas's opponents explained repeatedly that they were not filibustering — they just wanted adequate time to debate and expose serious problems with his nomination.” Democrats further claim that since they only blocked 10 out of 214 nominees during the last session, it’s certainly not such a big deal. What they fail to understand is that they don’t have a right to block anyone who has majority support – not 10 judges, not even one, because these nominees have the right to be voted on.
Many Democratic Senators currently filibustering candidates are trapped by their own words – having just a few years back flatly denounced the very things they are now doing. In 1998, Senatory Leahy said that “If we want to vote against somebody, vote against them. I respect that. State your reasons. I respect that. But don’t hold up a qualified judicial nominee. . . . If Senators are opposed to any judge, bring them up and vote against them.” Also in 1998, the well known Senator Ted Kennedy said “Nominees deserve a vote. If our . . . colleagues don’t like them, vote against them. But don’t just sit on them – that is obstruction of justice. Free and full debate over judicial nominations is healthy. The Constitution is clear that only individuals acceptable to both the President and the Senate should be confirmed. The President and the Senate do not always agree. But we should resolve these disagreements by voting on these nominees – yes or no.” Senator Feinstein, 1999: “A nominee is entitled to a vote. Vote them up; vote them down. What this does to a [nominee’s] life is, it leaves them in limbo . . . It is our job to confirm these judges. If we don’t like them, we can vote against them. That is the honest thing to do. If there are things in their background, in their abilities that don’t pass muster, vote no.”
Senate Republicans are now strongly considering what is often called the “nuclear option” – informally changing Senate rules to force a vote on the nominees. This would grant Bush and his judicial selections the Constitutional justice that so many of these Democrats seemed so impassioned about a few years back. Senate Minority Leader Harry Reid has promised that if Republicans use the nuclear option, the Dems will retaliate by filibustering everything and closing down the Senate to practically all legislation. This of course, would not be a tremendous disaster (except for the Democrats) because the Senate does the least damage when it is not passing any laws. As a political move, the Left’s continued obstructionism can only be termed “dumb.” Just ask former Senator and Minority Leader Tom Daschle. He had Senator Reid’s job just last year, but judicial filibustering made him the first minority leader in 52 years to lose his seat.