The Filibuster

For a (mostly) fair recounting of the history and debate of the efficacy of using the filibuster to stop judicial nominees, I'd recommend reading NPR's story on the subject. The essential portion:

The filibuster has been primarily associated with legislative debates and controversies, although it has been used in regard to nominees as well. The implicit threat to filibuster, known as "placing a hold" on a particular bill or nominee, is a common tactic to slow or derail a given proposal or individual. By Senate tradition, the identity of the senator placing such a hold is not made public. The Senate Majority Leader may keep that identity secret indefinitely.

With respect to judicial nominations, the most effective tactic in opposition has been to bottle them up in committee. In the later years of the Clinton presidency, the Senate Judiciary Committee, which was controlled by Republicans, did not hold hearings for as many as 60 of his nominees, according to Democrats. They argue that this refusal to even consider President Clinton's nominees was just as effective in blocking them as a filibuster.

Several high-profile nominations have also been defeated in up-or-down votes on the Senate floor, the most recent being President Reagan's nomination of Robert H. Bork in 1987. But the use of the filibuster has not been unknown. Democrats point to the 1968 nomination of Abe Fortas to be Chief Justice of the Supreme Court. . .

Q: Republicans say filibusters were never intended to block votes on judicial nominations, and they have threatened to rule such extended debate out of order if it happens again. Senate Majority Leader Bill Frist calls this "the constitutional option." Democrats call it "the nuclear option." How would this option be exercised?

If Frist should decide to use this tactic, the scenario would probably look like this. A judicial nomination approved by the Senate Judiciary Committee would be brought to the floor for debate. The motion to proceed to consider that nomination would be debatable, and opponents would indicate their intention to debate it at length. This would be taken to mean a filibuster was underway (or soon would be). At some point in that debate, Frist would seek a ruling of the chair (meaning the Senate’s presiding officer) as to the number of votes needed to end the debate (invoke cloture).

The presiding officer, who at such an important moment might well be the constitutional presiding officer, Vice President Dick Cheney, would then rule. It is presumed that Mr. Cheney would rule that a simple majority would be sufficient, because the three-fifths majority requirement should not apply to nominations under the "advise and consent" clause of the Constitution.

Democrats, who dispute this reading of the "advise and consent" clause, would then object. A vote would be held on the ruling of the chair, and a simple majority would be sufficient to uphold that ruling. . .

Democrats call this the nuclear option because they regard it as akin to the use of a nuclear weapon. They have said they would respond "in kind" to such a move. That means they would exercise their rights as senators to delay or derail any business before the Senate that does not relate directly to national security or public safety.

The first thing I have to point out is the "But the use of the filibuster has not been unknown..." bit. It hasn't been unknown, but it has happened once. Yet the way it is written implies that it isn't quite that infrequent, doesn't it?

Sean Rushton at NRO has also written a revealing piece regarding the Democrats' sudden embrace of the filibuster.

Sen. Joseph Lieberman (D., Conn.) on Wednesday held a press conference to criticize Republican efforts to restore Senate tradition to the judicial confirmation process. But another proposal regarding Senate rules somehow escaped his ire, and has received scant attention despite the New York Times editorial board’s recently saying it would go “even further than the ‘nuclear option’ in eliminating the power of the filibuster.”

That proposal would amend Senate rules to end all filibusters, not just those against judicial nominees. The proposal’s sponsor said that “the filibuster rules are unconstitutional” and was quoted as saying “the filibuster is nothing short of legislative piracy.” He announced his intent to end all filibusters with an unambiguous statement: “We cannot allow the filibuster to bring Congress to a grinding halt. So today I start a drive to do away with a dinosaur — the filibuster rule.”

Despite its support by several senior senators, you haven’t heard about this proposal in the MoveOn.org ads blasting Senate Republicans. And you probably haven’t heard about it from Senate Democrats who now give their full-throated support to filibusters against President Bush’s nominees. Why? Because the proposal wasn’t offered by Republicans; it was introduced in 1995 by senior Democrats, including Sens. Lieberman and Tom Harkin (D., Iowa). When it came to a vote, 19 Democrats, including leading blue-state senators such as Ted Kennedy and John Kerry, supported the measure.

Rushton further explains that the Republicans in the Senate are instead trying to reassert Senate traditions (read: rules) regarding stopping judicial nominations via filibuster.

. . . for the first several Congresses (from 1789 to 1806), a majority of senators always had the power to bring debate to a close (cloture) by a majority vote.

Rules guaranteeing up-or-down majority votes and abolishing the filibuster in various contexts are commonplace in modern Congresses as well. In fact, there are at least 26 laws on the books today abrogating the filibuster. For example:

You cannot filibuster a federal budget resolution (Congressional Budget and Impoundment Control Act of 1974).
You cannot filibuster a resolution authorizing the use of force (War Powers Resolution).
You cannot filibuster international trade agreements (Bipartisan Trade Promotion Authority Act of 2002).
And as the minority leader, Sen. Harry Reid (D., Nev.), well knows, you cannot filibuster legislation under the Nuclear Waste Policy Act of 1982.

. . . It is important to note that in 1975 the Senate voted three times in support of the power of a Senate majority under Article I of the Constitution to change the rules. Those precedents forced the Senate to act and led to a major change in the cloture rule.

So the restoration of Senate rules and traditions for judicial nominees enjoys both historical support and Senate precedent. But the constitutional power of a majority of Senators to strengthen, improve, and reform Senate rules and procedures is also expressly stated in the Constitution, and was unanimously endorsed by the U.S. Supreme Court in United States v. Ballin.

You'll have to read his piece for further information. Thus far, it seems as if the Democrats have succeeded in framing the issue. It will be up to the Republicans to "lead" if they want to succeed.