IF YOU WERE A SENATE Democrat, you'd filibuster those Bush judges. Yes, you would. When it came time to vote on a targeted nominee in this new Congress, you'd know the deal. You'd know that Republicans would move for cloture to limit debate, and that if they succeeded, the nominee would get an up-or-down vote. But you'd also know that, under those very useful Senate rules, they would need 60 votes to prevail, and that because the Republicans number just 55, your side would win so long as at least 41 of you hung together.
Yes, if you were a Democrat, you'd be ready to say no and no and no again on those cloture petitions. You'd filibuster the Bush nominees because you'd know that if they were actually voted on, they'd be confirmed. Each and every one of them, by majorities in the mid-to-high 50s. And then for decades those nominees would sit on the circuit courts of appeal, which, because they have the last word on all but the handful of cases that go up to the Supreme Court, are very important indeed. If those judges performed as advertised, they would disdain the living, evolving Constitution that you so admire and would decide cases in the manner of Scalia or Thomas, Bush's favorite jurists, a horrible prospect.
Of course, if you were a Democrat (and even if you were a Republican), you'd also know that some judges don't perform as advertised and that some have demonstrated an unusual capacity to "grow in office"--Washington shorthand for judges who grow less conservative. And you'd know that because they have that capacity, some Bush judges might turn out to be like, say, Souter or Kennedy, a pleasant surprise for your party. But as a Democrat, you'd know that you couldn't trust this president to put up too many Souters and Kennedys, and that you'd better be ready to say no whenever your leaders gave the signal--following due consultation, of course, with People For the American Way and the rest of the activist groups to whom your caucus has outsourced its critical thinking on all things judicial. As a Democrat, you'd know that your filibusters of circuit nominees would warm you up for the big game--the filibustering of Bush's Supreme Court picks.
If you were a Democrat, you'd know better about a lot of things said on your side. Of course you would. You'd know Schumer was a fool when he justified filibustering nominees by citing Madison's description of the Senate as a "cooling saucer," because you'd know (wouldn't you?) that the image came not from Madison but Washington, and that as he used it, it had nothing to do with filibusters, the first one of which took place only in the 1820s, and to stymie not judicial nominations, but legislation.
You'd know that the great constitutionalist Robert Byrd was speaking nonsense when he said that the Senate was "rejecting" Bush judges, because you'd know, wouldn't you, that the Senate was doing no such thing, but that a subset of the Senate, a minority made up exclusively of you and your Democratic colleagues, was engaged in a blocking action designed to prevent an up-or-down vote that, were it held, would invariably result in approval, not rejection.
And block you would, over and over again, just as you did during the last session, when you and your brilliant colleagues prevented votes on no fewer than 10 nominees. You'd keep on with this even though you'd know that the road you and Bobby and Chuck and Ted and Hillary and John decided to go down two years ago when you became the minority party had never been taken before. That is, you'd know that no Senate minority ever before had made routine use of the filibuster to block judicial nominees who would have enjoyed majority Senate support.
And you'd know that the Republicans were right when they insisted on an up-or-down vote, and that the parliamentary procedures they were contemplating using to exempt judicial nominations from the filibuster, a Senate rule that the Senate may change as it wishes, were once used by Byrd himself when he was majority leader to establish Senate precedents designed to stop filibusters and other delaying tactics. Indeed, you'd know that the record was filled with all kinds of statements by Byrd and other Democrats quite at odds with their current ones. You'd know that Ted once got up and said, "The filibuster has been the shame of the Senate and the last resort of special interest groups," and "the Senate should operate under the principle of majority rule, except as the Constitution otherwise provides," and "a simple majority is entitled to change the Senate rules." You'd applaud the hypocrisy but you might also applaud obviously sincere confessions, like Barbara Boxer's, who said just this week at MoveOn.org's "Rally for Fair Judges" that "I thought I knew everything" back when Democrats controlled the Senate and she opposed the filibuster, but "I was wrong . . . totally wrong."
If you were a Democrat, you wouldn't worry if Frist tried to end the filibuster for judges. You wouldn't worry if you and your colleagues responded to such an effort by shutting down the Senate. Actually, you'd be ready to blow the place up. Because you'd know nothing was more important than blocking votes on Bush's nominees, even though a leading legal scholar who advises Democrats says that the Bush judges so far are proving no different, in terms of judging, than the judges sponsored by Reagan and Bush's father.
If you were a Democrat, you'd not worry about your party's rejection of the practice of so many years (1791 to 2002) whereby a simple majority was all that was necessary to confirm a judge. You'd not worry that your party had managed to change the vote needed for the confirmation of a judge from a simple majority to a three-fifths supermajority, and in fact you'd think Boxer had nailed it when she said--over there at the MoveOn.org rally--that "for such a super-important position there ought to be a super vote."
You'd not worry that in 2006 or 2008 your party might lose Senate seats as Tom Daschle lost his last fall partly on account of its unprecedented filibustering ways. You'd not worry that some of the five Democrats from red states whose seats are up in 2006 might lose because of this issue. And you'd not worry that a Republican minority might someday decide to follow your example and routinely filibuster a Democratic president's judicial nominees. Certainly you'd not worry, nor would constitutionalist Byrd, that the filibuster (to quote the legal scholar Michael Gerhardt) "is problematic because it creates a presumption against confirmation, shifts the balance of power to the Senate and enhances the power of the special interests."
You'd not worry about those things because you'd agree that nothing matters as much as preventing votes on Bush's nominees. You'd know that because the special interests--er, your "advisers," the folks over at People For the American Way, NARAL, the ACLU, and, fresh off their great success in the 2004 campaign, MoveOn.org told you so. You'd know them, if you were a Democrat, and, more important, they'd know you, and they'd know you'd be afraid of getting crosswise with them and with the Democratic base they claim to represent.
If you were a Senate Democrat, then, you'd be ready to vote no and no and no again. Deep down, though, you'd also know that your party had fallen off its rocker. You'd know that the filibustering strategy was stupid and unwise, bad for the Senate, bad for the presidency, bad for the courts--and bad for the Democratic party. And you'd give it up. If you were a smart Democrat.
-- Terry Eastland, for the Editors