Frist's fits

In a Chicago Tribune editorial today, Bill Frist again launched into the feigned self-righteousness that has become emblematic of the Republican leadership. “Many Democrats.” Frist laments, “have decided to mock the Senate's rules in the name of partisan advantage. For more than three years, the Democrats have abused Senate rules to impede the judicial nomination process.”

Ah, the “abuse Senate rules” charge. We have been hearing this ever since the Democrats began filibustering. And what is the abuse here? Even if filibustering judges were truly unprecedented (which is not exactly true), why is filibustering a judge that could easily be re-nominated, appointed during Congressional recess, or replaced with a slightly less crazy individual, more insidious or abusive than filibustering a piece of legislation?

In other words, why do Republicans believe that filibustering important legislation like Civil Rights (a la Strom Thumond, who holds the filibuster record at over 24 hours), or filibustering Wilson’s League of Nations in 1919 (initiated by another Republican) are legitimate uses of the filibuster but judicial nominees, who serve for life and can effect millions of Americans with their rulings, are illegitimate and indeed “abusive”?

And has the use of filibusters really, as Frist charges, “impeded the judicial nomination process”? Let’s take a look at a few facts:

• Today, 97% of the federal judiciary is filled, and there are fewer vacancies since the Reagan Administration. There are now fewer vacancies on both the Circuit and District Courts than at any time in President Clinton's two terms.
• 88% of Bush's nominees have been confirmed thus far, compared to 81% confirmed during Clinton's first four years.
• Democrats have actually exercised their right to filibuster, thus prompting the Republicans to consider abolishing this time-honored practice, a mere 10 times (if you include the threat of filibuster- only 7 have actually been filibustered) and Bush re-nominated almost all of them! Those judges included such ultra-conservative activists as Priscilla Owen, Miguel Estrada, and David McKeague (who was filibustered largely as a result of the Senate Judiciary Chair’s disrespect of the ‘blue slip’ by home-state Michigan Senators - an established Senate precedent which allows for a Senator to put a hold on a troubling nominee to a court in his/her state. McKeague was then renominated in February, 2005, and confirmed after the compromise on the filibuster and after the Michigan Senators withdrew their objections).
  

In short, there is nothing alarming or abusive about the Democrats filibustering a small handful of judicial nominees, men and women who will serve on the bench and effect public policy long after every Senator in Congress has gone.

If Frist’s exaggerated and melodramatic cries about how abusive the judicial filibuster is fails to confront reality, his next claim is perhaps the most hypocritical talking point of them all (a high charge given how hypocritical Republicans have become since Bush took office):

Said Frist, “As a body, the Senate needs to debate and deliberate but, ultimately, it exists to vote. If Alito has enough votes for approval, he should take his place on the bench. If he does not, the president will have to find another nominee. It's that simple.”

That simple, aye? Frist was elected to the Senate in 1994, during the so-called Republican Revolution, so he must be aware that what is saying directly contradicts his party’s actions under President Clinton.

Prior to the late 1990’s, virtually every judicial nominee received a hearing

From Herman Schwartz’s article, Senate Rules Meltdown:

“All this changed in 1996. Rather than openly challenge President Clinton's nominees on the floor, Republicans decided to deny them Senate Judiciary Committee hearings. Between 1996 and 2000, 20 of Bill Clinton's appeals-court nominees were denied hearings, including Elena Kagan, now dean of the Harvard Law School, and many other women and minorities. In 1999, Judiciary Chairman Orrin Hatch refused to hold hearings for almost six months on any of 16 circuit-court and 31 district-court nominations Clinton had sent up. Three appeals-court nominees who did manage to obtain a hearing in Clinton's second term were denied a committee vote, including Allen R. Snyder, a distinguished Washington lawyer, Clinton White House aide, and former Rehnquist law clerk, who drew lavish praise at his hearing -- but never got a committee vote. Some 45 district-court nominees were also denied hearings, and two more were afforded hearings but not a committee vote.

Even votes that did occur were often delayed for months and even years. In late 1999, New Hampshire Republican Bob Smith blocked a vote on 9th U.S. Circuit Court of Appeals nominee Richard Paez for months by putting an anonymous hold on the nomination. When Majority Leader Trent Lott could no longer preserve the hold, Smith and 13 other Republicans tried to mount a filibuster against the vote, but cloture was voted and Paez easily confirmed. It had been over four years since his nomination.

When his tactics on the Paez and Marsha Berzon nominations (Berzon was filibustered along with Paez, more than two years after her nomination) were challenged, Smith responded with an impassioned floor speech in defense of the judicial filibuster: "Don't pontificate on the floor of the Senate and tell me that somehow I am violating the Constitution of the United States of America by blocking a judge or filibustering a judge that I don't think deserves to be on the circuit court ... That is my responsibility. That is my advice and consent role, and I intend to exercise it.”

So why don’t the Democrats try and use the same tactics as the Republicans did? In part, it is because the Republicans changed the rules once they controlled the game. Senator Hatch, then chairman of the Senate Judiciary Committee, announced that he would abandon the "blue-slip system" he had insisted on since 1995, whereby a senator could block action on a nominee from his or her home state. This system permitted Jesse Helms to block all of the three black candidates to the 4th U.S. Circuit Court of Appeals. Anonymous floor holds were also abolished, as was the rule requiring that at least one minority-party senator on the Judiciary Committee must agree to a vote on a nominee if any committee member objects. These rules changes left the Democrats with only the filibuster.

Frist and other Republicans base their charges on two simple assumptions and they are that Americans neither know or care about Senate procedures, and that Americans have a short enough memory span not to realize that everything Frist says is contracted by Republican actions during the Clinton administration. Sadly, those assumptions are likely correct, but I would implore anything reading this to consider the following two points:

At one time in our nations history, the House of Representatives allowed filibusters and unlimited speaking time. When they were forced to abandon it in the 1890’s because sectional North/South differences were dominating business, it radically altered the nature of the House, and left the Senate as the final haven for uninterrupted debate. If the Republicans abolish this right for judicial nominees, why would they not one day abolish it for regular legislation? And even if it were limited to judicial nominations, I suspect the law of unintended consequences will quickly show itself.

Ultimately, it is the Congress, and not the President, that is supposed to be the most direct arm of the American people. If Bush or the Republicans wanted to solve this “problem,” they could easily do so with negotiation and compromise, the very hallmark of our government. It is only because, like our current foreign policy, threats and demands are the only language the Republicans seem to know, that the issue of judicial filibusters have been forced on conscientious Democrats. The Republican opposition to judicial filibusters has nothing to do with principle or practicality and everything to do with forcing the Democrats to act and then trying to take political advantage by attacking them.