The Nuclear Option

So, now that the Republicans control Congress, the Presidency, and the Judiciary, their feelings are hurt when their attempt to further pack the Judiciary with extremist right-wing judges is blocked by a Democratic filibuster. Well, far be it from me to tell them what they should feel, but the Republican refrain of "Unprecedented!" is in fact wrong.

In fact, the filibuster has a long history of distinguished and notorious use. It as even been used to block a Supreme Court nomination -- that of Abe Fortas in 1968.

From the Senate's website (bold emphasis mine):

Fortas became the first sitting associate justice, nominated for chief justice, to testify at his own confirmation hearing. Those hearings reinforced what some senators already knew about the nominee. As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam. When the Judiciary Committee revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course, Dirksen and others withdrew their support. Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.

On October 1, 1968, the Senate failed to invoke cloture. Johnson then withdrew the nomination, privately observing that if he had another term, "the Fortas appointment would have been different."

What may be unprecedented is the frequency with which the Democrats are using the filibuster to block judicial nominations. (Instead of only filibustering one judge, as it has been done in the past, they filibustered ten.) Since the Democrats are in the minority in the Senate, the filibuster is the only mechanism they have to block extremist judges. So, of course, the Republicans want to eliminate that mechanism, using the so-called "Nuclear Option". And their second refrain is "Up-or-Down Vote!"

Now ignore for a second that the Democrats have allowed 219 out of 229 judges nominated by President Bush to be confirmed by the Senate. Also, ignore for a second that the Republicans didn't allow up or down votes on nearly 60 of Clinton's nominees. Does Bush deserve an up-or-down vote by the full senate for each of his nominees?

The Constitution has this to say in Article II, Section 2, Clause 2 (bold emphasis mine):

Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Nothing in the constitution mandates an up-or-down vote from the Senate. If the Constitution offered the Senate only the role of consenting, that might be construed differently. However, the Constitution also provides for a role of advisor for the Senate. This clearly means a more complicated process is permissible.

Also, the Constitution does not provide rules to the Senate governing how to reach advice and consent -- the Senate is free to create its own rules and traditions. And the Senate does have rules and traditions governing consent on judicial nominees, including the entirely constitutional possibility of a filibuster.

The Republicans want to change the rules and traditions of the Senate to increase their power in the judiciary. The Democrats want to preserve the power they currently have. That is true nature of this discussion.

Abram