Filibuster: The One Remaining Check and Balance in Our Federal System

The Bush administration has defiantly refused to engage in genuine dialogue around judicial nominees or respect the Senate’s constitutional role in the confirmation process. The administration has failed to consult with senators on a bipartisan basis, has taken the unprecedented step of renominating judges who were rejected by the Judiciary Committee after extensive hearings, and has instructed judicial nominees not to be forthcoming with senators.

At the same time, Senate Judiciary Committee Chairman Orrin Hatch has abandoned committee rules, longstanding bipartisan agreements, and his own professed principles in order to try to push through nominees with as little scrutiny as possible. For example, the recent single hearing for three controversial appeals court nominees was unprecedented and unfair and prevented the kind of scrutiny that is required for senators to fulfill their constitutional advise and consent obligations regarding nominees for these powerful lifetime positions. In contrast with his current behavior, Sen. Hatch told a Federalist Society audience in 1997, “I believe the Senate can and should do what it can to ascertain the jurisprudential views a nominee will bring to the bench in order to prevent the confirmation of those who are likely to be judicial activists.” He said that when dealing with nominees with “limited paper trails,” the Senate should be “more diligent and extensive in its questioning of nominees’ jurisprudential views.” The current actions of Sen. Hatch and the administration, however, threaten to make this virtually impossible.

In this context, the filibuster is the only tool that Senate Democrats have at their disposal to try to force the administration and the Republican Senate majority to engage in bipartisan consultation, compromise, and cooperation on judicial nominations. Their only other option would be to stand aside while the administration abuses its power in order to fill the federal courts with judges who are eager to reverse decades of legal precedent and social justice progress on civil rights, privacy and reproductive choice, religious liberty, environmental protection, worker and consumer safety and health and more. That would be a devastating dereliction of senators’ duty to their constituents and to the American people and an abdication of their constitutional advise and consent responsibility. As the Berkshire Eagle (MA) has written, “Of course, Senate Democrats should not lower themselves entirely to Republican standards in vetting judicial nominees. But they should not be bullied into approving unqualified nominees and they shouldn’t hesitate to filibuster poor nominations if necessary.” (February 1, 2003 editorial)

This kind of situation is precisely why our constitutional framework was designed as a system of checks and balances. In 1994, when Democrats were in the Senate majority, Sen. Hatch called the filibuster “one of the few tools that the minority has to protect itself and those the minority represents.” Because the right wing of the Republican Party controls the Senate, the House of Representatives, and the White House, the filibuster is the only check and balance left in the federal system. It is particularly essential – and appropriate – to wield it to protect Americans’ constitutional rights, liberties, and legal protections.

Using the filibuster would hardly be the radical step portrayed by the administration’s allies. Cloture votes are an increasingly common procedure in the Senate as a way to force an effort toward bipartisan cooperation. One scholarly analysis summarized in 1997, “[I]t is now commonly said that sixty votes in the Senate, rather than a simple majority, are necessary to pass legislation and confirm nominations.” According to the Congressional Research Service, cloture was sought on 30 nominations between 1949 and 2000; 13 were cloture votes on judicial nominations between 1968 and 2000, including Supreme Court and lower court nominations. These nominations were opposed on grounds of judicial philosophy as well as inadequate review of nominees’ records.

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