The Filibuster as a Check on Abuse and an Incentive for Bipartisanship

Sen. Hatch has made it clear that his goal of speeding up the confirmation conveyor belt is overriding his professed commitment to fairness and the Judiciary Committee’s own written policies and longstanding traditions. Coupled with the Bush administration’s defiant refusal to engage in genuine bipartisan consultation and compromise on judicial nominations, Hatch’s actions underscore the fact that the filibuster is the only remaining tool at Democratic senators’ disposal to prevent the administration from packing the appellate courts with right-wing ideologues and the only way to give the administration any incentive to come to the bargaining table in good faith.

Hatch and other Republican leaders are now suggesting that it is unconstitutional to filibuster judicial nominees. Their arguments are without merit and are blatantly opportunistic given Republicans’ use and defense of the filibuster in the past. Senator Richard Lugar explained in 1993 that it is “a function of our Constitution that minorities are protected in many, many ways,” and that this is part of the rationale for the continued existence of the filibuster. When some Republicans were opposing a cloture vote on a judicial nomination in 1994, Hatch himself explained that the filibuster is “one of the few tools the minority has to protect itself and those the minority represents.”

Republicans used the filibuster to prevent the confirmation of Abe Fortas as Chief Justice of the Supreme Court in 1968 and the confirmation of Henry Foster as Surgeon General in 1995. Cloture petitions were necessary to obtain votes on the nominations of both Richard Paez and Marsha Berzon to the Ninth Circuit in 2000; Paez was delayed for over four years. Indeed, current Senate Majority Leader Frist was among those voting against cloture on the Paez nomination. Since 1980, cloture motions have been filed on 14 lower court nominations, according to the Congressional Research Service. All of this, some Republicans now claim, was unconstitutional.

Moving Forward

The way to move beyond the current standoff on judicial nominations is not for Sen. Hatch to assert unchecked power as Judiciary Committee Chairman or for Senate Republicans to try to fabricate constitutional objections to the use of the filibuster. The solution is for President Bush to abandon his longstanding refusal to engage in genuine bipartisan consultation and compromise and to put forward a more moderate and balanced slate of nominees.

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