May 18, 2005
North Dakota and Minnesota senators should vote for a U.S. Senate rule change that would allow an up/down simple majority vote on the president's judicial nominees. Or better yet, minority senators should scrap their filibuster altogether, thus avoiding a rule change tussle.
The use of the filibuster to block consideration of the nominees might be within the rules of the Senate. But using the 60-vote hurdle to prevent qualified nominees for U.S. circuit courts from a confirmation vote is at best abuse of the filibuster, at worst in-your-face obstructionism by minority Democrats.
Supporters of the rule change argue that it is unprecedented to use the filibuster to block judicial nominees. They believe misuse of the filibuster demands the rule change. The 60-vote threshold, they argue, is specific to the legislative filibuster. Applying it to judicial nominees, they say, is an unacceptable aberration. The proposed change would scuttle a judicial filibuster with 51 votes, not 60.
That's a sound argument.
Democrats insist the filibuster is the only tool the minority has to protect itself from the majority. They say the U.S. Senate is unique in that the rules are designed to not only protect the minority, but also give minority members power to check the majority. And rules governing the filibuster have been changed before (1917, 1975).
That's a sound argument, also. It speaks to the wisdom of the nation's founders who included in government a forum where minority voices would not be squelched by the tyranny of a majority. That forum is the U.S. Senate.
But the tactics by Senate Democrats are having the opposite effect. No Senate debate is taking place. Republican offers of debate (100 hours for each nominee) have been rejected by Democrats. They have resorted to a strategy which can be characterized as obstructionism.
And what of the nominees? Nearly all of them have been rated highly qualified by the American Bar Association. They have distinguished records in their states. They have endorsements from across the political and ideological spectrum.
By virtue of his election, the president has the right - the duty - to appoint judges who will carry out their constitutional mandate. If the nominees are qualified (and the president's are) the Senate's role is advice and consent, not advice and obstruction.
Sen. Norm Coleman, R-Minn., supports the rule change. Sen. Mark Dayton, D-Minn., and Sens. Byron Dorgan, D-N.D., and Kent Conrad, D-N.D., should put partisan considerations aside and help secure a Senate vote for the president's choices for the circuit courts. If a few sensible Democrats vote with Republicans this week to return the filibuster to legitimacy, some of the tarnish might be polished off the Senate's image.
Otherwise, the members of "the greatest deliberative body in the world" will continue to look like two gaggles of children lobbing nasty taunts at each other.
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