Selective Use of Filibuster Could Be the Only Hope for Bipartisan Resolution on Judicial Nominations

The modern-day filibuster, a Senate procedure that requires 60 senators to agree to a vote on significant issues, is an essential check on the abuse of majority power and can be an effective strategy for achieving bipartisan cooperation. Contrary to the complaints of some Republican leaders, it is also a legitimate tool for preventing the confirmation of an appeals court nominee like Miguel Estrada – who refused to answer Senate questions about his jurisprudential views, who is opposed by civil rights groups (including leading Hispanic groups) and championed by far right organizations, and who is widely considered a prime candidate for a future Supreme Court nomination.

Estrada’s refusal to answer questions about his approach to judging and the Constitution, coupled with his troubling record and the enthusiastic support he is receiving from right-wing groups, argues for senators to oppose his confirmation vigorously and with all the Senate parliamentary procedures available to them, as they have been urged to do by leading Hispanic, civil rights, environmental protection, labor, reproductive rights and other public interest organizations. If senators fail to do so in this case, they will set a dangerous precedent for allowing the administration and the Republican majority to railroad lower court and Supreme Court nominees through the Senate without exposing their judicial philosophies to meaningful Senate and public scrutiny. This would make a mockery of the Senate’s constitutional advise and consent obligation.

Given how much is at stake with this administration’s court-packing strategy, which could lead to ideological domination of the entire federal judiciary by states’ rights ideologues for decades, senators must be willing on occasion to use the filibuster to create genuine opportunities for full review and consideration of nominees’ records and judicial philosophies, and to provide the administration with incentives to cooperate in nominating a more mainstream and balanced slate of judicial nominees. As the Detroit Free Press has editorialized, “keeping the courts within the realm of mainstream jurisprudence is a worthy use” of a filibuster. “The Senate is there to keep things in check when the executive branch reaches too far.” (January 21, 2003 editorial)

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