The Magazine

The Fairness Option

From the April 25, 2005 issue: Listening to Democrats and reading editorial commentary, some Americans might think that the three-fifths Senate vote required to end debate was dictated by James Madison on his deathbed. Hardly.

Apr 25, 2005, Vol. 10, No. 30 • By PHILIP TERZIAN, FOR THE EDITORS
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THE SENATE MAJORITY LEADER, Bill Frist, and his Republican colleagues, face a momentous decision: Do they allow the Democratic minority to prevent the Senate from voting on judicial nominees, or do they invoke the "nuclear option"--that is, change the rules so a simple majority of 51 can force a vote?

For the past few months, Frist has been applying public pressure: first, by routinely complaining about the Democratic filibuster against President Bush's nominees for the federal appellate bench; and second, by suggesting that "all options are on the table." Frist's threats have not impressed Democrats, who see no benefit in curtailing their obstructionist tactics. From their point of view, talking nominees to death keeps conservatives out of the federal judiciary, and weakens the Bush administration. And Democrats argue that changing Senate rules would injure the spirit of harmony on Capitol Hill.

Excuse us for a moment while we gag over that one. Simply stated, it is the Democrats who have violated the standards of behavior in this episode. They have maligned distinguished, well-qualified judges with whom they disagree as "radical" and "outside the mainstream" of judicial thought when it is, in fact, the Democrats who hover at the fringes of extremism. Senate minority leader Harry Reid has a soft voice and professorial manner, but he is an accomplished name-caller (Alan Greenspan is "one of the biggest political hacks we have in Washington") and seldom hesitates to misrepresent the views of judicial nominees. It's impossible to reconcile the ideal of comity with summarily denying nominees the courtesy of an up-or-down vote on the Senate floor.

That is why Frist needs to concentrate his energies, organize the majority, and face down the challenge posed by Harry Reid and his troops. But let's call this "nuclear option" by its proper name: the fairness option. Senate Democrats are the ones who have, in effect, gone nuclear--requiring a supermajority of 60 senators to approve judges. Listening to Democrats, and reading editorial commentary, Mr. and Mrs. America might have gained the impression that the three-fifths Senate vote required to end debate was dictated by James Madison on his deathbed. Hardly. Cloture is a Senate rule, not a constitutional requirement. It was President Woodrow Wilson, frustrated by the Senate's indulgence of endless talk, who promoted the adoption of Rule XXII, mandating a two-thirds vote for cloture. Sixty years later, Senate Democrats, led by Robert Byrd, reduced the two-thirds requirement to three-fifths. The sacred principle of requiring 60 votes to end a filibuster is neither an ideal of the Founders nor a historic precedent: It is a procedural rule less than 30 years old. And, in the long history of the United States, filibusters have never been used by a minority systematically to block a president's judicial nominees.

It is true that the filibuster preserves one option for the minority against the rule of the majority party, and may allow a minority to focus the attention of the country on momentous issues before the Senate acts. But it is also worth noting that this procedure has not always been used for constructive purposes. In recent times, the filibuster was used most promiscuously to frustrate civil-rights legislation: In 1957 Strom Thurmond held the floor for 24 hours for that purpose--a record which still stands--and in 1964, 18 Democrats and one Republican blocked the Civil Rights Act for two-and-a-half months.

That's the history. The politics is even more compelling. No Senate Republican should misunderstand the Democrats' motive in blocking the nominations of, among others, Justice Janice Brown of the California Supreme Court, Judge Henry Saad of the Michigan Court of Appeals, or Texas Supreme Court Justice Priscilla Owen: It is power, pure and simple. These, and other jurists, have been nominated by President Bush, favorably evaluated by the American Bar Association, have testified before and been endorsed by the Judiciary Committee, and await final judgment in the Senate. If the Democrats manage to prevent a vote for the sake of political obstruction, they will set a precedent more momentous than a change in Senate rules.

The power of any president, Democrat or Republican, to appoint judges would then depend not on a formal vote of the Senate, but on the consent of 40 partisans determined to inflict maximum political damage. So the stakes for the Bush administration could not be clearer: If Harry Reid and the Democrats can abuse Senate rules to stop their colleagues from voting on appellate nominees, Supreme Court appointments will be next on the list. And which is more important: the right of any president to appoint federal judges, and the right of nominees to a Senate vote; or some spurious notion of "comity" on Capitol Hill?

--Philip Terzian, for the Editors