In early November, Republicans held an all-night Senate session meant to protest the hold-up of several Bush judicial nominees by Democrats. Yet instead of providing major breakthroughs in the confirmation process, Republicans conducted a 40-hour yap-fest that had the most avid C-Span fans admitting boredom. The session was replete with carping and devoid of substantive action, an accurate reflection of the GOP’s efforts to end the judicial stalemate over the past year. Republicans are making a lot of noise over the blocking of a small number of nominees, and not all of it is justified.
The Constitution mandates that the president submit nominees for federal positions to the Senate to tender the body’s advice and consent. These federal positions include judgeships, and are to be approved by a simple majority of present Senators. Over the past year, Democrats have indefinitely delayed votes on 6 judicial candidates by utilizing the lack of speaking time constraints in the Senate. These “filibusters” on judicial nominees have been labeled as unprecedented and obstructionist by Republicans. At first glance these claims seem to have some merit, but after careful consideration they start to lose value.
Democrats may have delayed votes on six of Bush’s judicial nominees, but Democratic Senators have also allowed 168 other judges to be confirmed during the current administration. By simple math, that means that Republicans have been successful in herding 96.5 percent of their choices into federal courtroom seats, a fact indicating that the Democrats have used the filibuster sparingly — only against those whom they consider to be the most extreme candidates, detrimental to the American public.
While it may be true that the filibustering of specifically judicial nominees is an unprecedented event, that statement is misleading. It is misleading because it implies that Democrats are employing a revolutionary action with no applicable historical justification, which is simply false. The filibuster has been used for well over a century by the minority party to stop legislation, and has been exercised by both Democrats and Republicans. For those who argue that legislation and confirmation are distinct tasks of the Senate, the filibuster has also been used to block the confirmation of non-judicial nominees.
In an editorial in the Nov. 21 edition of The Washington Post, Jeffrey Lubbers reminds the American public that in 1980, President Carter’s pick for general counsel of the National Labor Relations Board was filibustered by Republicans. (Incidentally, the man leading the filibuster was Senator Orrin Hatch, the same man who argued against the Democratic use of the filibuster during the previously mentioned November talk-a-thon.) Although the filibuster was finally broken on the second cloture vote, the fact remains that it was used by Republicans to block a Democratic nominee. It is difficult to draw a bright line between the confirmation of a non-judicial nominee and a judicial nominee, since both confirmations fall under Section 2 of Article II of the Constitution.
Furthermore, the concept of blocking a judicial nominee is by no means an unprecedented action. During the Clinton administration, Republicans in the Senate held down 63 of President Clinton’s picks for the judiciary by refusing to let them out of committee and onto the Senate floor. If one accepts the concept of differing levels of dirty politics, then the Republican efforts during the 1990s were arguably more egregious and more obstructionist than recent Democratic efforts. Holding down a judicial nominee in committee is a secretive move less apparent to the public than the filibustering of a judicial nominee on the Senate floor. Additionally, the sheer numbers indicate that for every one nominee Democrats have rejected during the current Bush administration, Republicans denied 10 in the Clinton administration (six to 63).
The GOP is not exactly helpless in the face of the Democratic filibuster, either. The Republicans can use this issue as cannon fodder in the next midterm election to sway public votes their way, labeling Democrats as obstructionist. If the people agree, then Republicans can gradually get their judges appointed over time. Two years is not a long period to wait, considering the significance of the position to which judges are appointed for life.
Whether the blocking of judicial nominees by a Senate minority is a legitimate practice or a particular nominee should be confirmed are moot points. What should be realized is that the practice is neither unique to the Democratic Party, nor is its appearance in current politics an unprecedented event. Republican claims of the insidious nature of the Democratic filibuster are unjustified. When emotion is swept aside, and the pure numbers evaluated, it is easy to see that President Bush has achieved over 96 percent confirmation of his judicial nominees. In college terms that’s a 4.0, which is a grade any of us would be happy to accept.
Howard Kim is a freshman in Jonathan Edwards College.