Judicial Nominations and the Filibuster

Tensions in Washington are escalating as Republicans and Democrats prepare for a showdown over the handful of George W. Bush's judicial nominations that the Democrats have blocked. Since the Democrats are the minority party, and since the Republicans have marched in lock step with their President, the only weapon the Democrats have is the filibuster.

What is the history of the filibuster? Since the Senate was created, there have been no advance limits on debate on any issue. In 1841, Senator Henry Clay, at the time a member of the Whig party, sought to limit Senate debate by a simple majority vote. It was not until 1917, however, that any limit on filibusters was enacted. From 1917 until 1975, a filibuster could be ended by a two-thirds vote; since 1975, only a 60% vote has been required.

In the early days, any single Senator could obstruct any item of Senate business. Over time, the power of the filibuster has been reduced by making it more difficult to sustain. Today, 41 Senators must agree with the minority position to keep a filibuster going. It is absolutely true that the Democratic use of the filibuster on judicial nominees is without precedent in our history. However, that is far from the only unprecedented action by either party in recent years.

Let's step away for a moment from the charged rhetoric and look at the core question: who deserves a lifetime appointment to the federal judiciary? Any nominee with the support of only 50 Senators of the President's own party? Isn't the nation better served by having judges who inspire confidence on all sides that they will rule fairly?

Many conservatives have lost confidence in the judicial system, because it has spurned many of their cherished traditions. Some of that loss of confidence is justified: Roe v. Wade, for example, was built on such shaky legal logic that it stands with Bush v. Gore and Plessy v. Ferguson in the Supreme Court Hall of Shame, although Rehnquist's dissent is hardly any better. I believe that a woman must have the right to control her own body according to the dictates of her own conscience, but I also believe we need a more solid legal footing for that right in order to remove the issue from never-ending debate.

I also believe that the Constitution should mean what it says in the Ninth and Tenth Amendments: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the [federal government] by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

America needs judges whose decisions settle issues, rather than deepening the divide. America does not need judges chosen by a narrow party-line vote over the determined objections of a large minority.