Faith, Beer, and Other Things That Interest Geoff

Charles Krauthammer Clears Up Judicial Fillibuster Arguments

Four years ago this week, President Bush nominated Texas Supreme Court Justice Priscilla Owen to the federal bench. Four years later, she and six other circuit court nominees remain unconfirmed and unvoted upon because of Democratic filibusters.

This technique is defended by Democrats as traditional and rooted in history. What a fraud. The only example that comes close is Lyndon Johnson's nomination in 1968 of (sitting) Supreme Court Justice Abe Fortas to be chief justice. But this case is muddied by the fact that (a) Fortas was subject to conflict of interest and financial impropriety allegations, (b) he did not appear to have the votes anyway, and (c) the case involved elevation on the court, not appointment to the court.

Even if we concede Fortas, that is one successful filibuster, 37 years ago, in two centuries of American history. In 2000, a small number of Republicans tried to filibuster two Clinton judicial nominees, but were defeated in that attempt not only by Democrats, but by Republicans voting roughly 3-1 for cloture.

Krauthammer postulates on Democratic motivations and then continues.

Democrats are calling Frist's maneuver an assault on the very essence of the Senate, a body distinguished by its insistence on tradition, custom and unwritten rules.

This claim is a comical inversion of the facts. One of the great traditions, customs and unwritten rules of the Senate is that you do not filibuster judicial nominees. You certainly do not filibuster judicial nominees who would otherwise win an up-or-down vote. And you surely do not filibuster judicial nominees in a systematic campaign to deny a president and a majority of the Senate their choice of judges. That is historically unprecedented.

The Democrats have unilaterally shattered one of the longest running traditions in parliamentary history worldwide. They are not to be rewarded with a deal. They must either stop or be stopped by a simple change of Senate procedure that would do nothing more than take a 200-year-old unwritten rule and make it written.