May 2, 2005
By Wendy Long
Arizona Daily Star
If you were a senator, whose views would be more important to you: liberal special interest groups or registered voters? The liberal groups demand that Democrats filibuster some of President Bush's best-qualified nominees to the federal appeals courts.
But a recent Ayres McHenry nationwide survey reveals that 82 percent of registered voters believe well-qualified nominees deserve a Senate vote.
Some senators apparently believe voters won't see through partisan obstructionism. But they can't possibly believe the other myths about the filibuster:
Myth 1: Filibuster of judges - sacred tradition.
Fact: The filibuster is nowhere in the Constitution. It is not among the "checks and balances" our Founding Fathers created. It did not even exist until the 1830s, and the "tradition" involves legislation, not judicial appointments. The filibuster was used to defend slavery and oppose the Civil Rights Act - hardly noble purposes.
The current obstruction of judges is no "traditional" filibuster: It is the first time in more than 200 years that either party has filibustered to keep judges with majority support off the federal bench.
Myth 2: President Bush's nominees are being treated no differently than other presidents'.
Fact: In the past Congress, 10 of the president's 34 appellate nominees were filibustered - the lowest confirmation rate since FDR.
Democrats mask their sabotage by citing the confirmation rate of judges to federal courts overall - an irrelevant statistic because the federal courts of appeal make final rulings on most issues of constitutional law.
Myth 3: The Senate has a "co-equal" role with the president in judicial nominations.
Fact: The Constitution expressly gives the president - and only the president - the power to nominate federal judges.
All the Senate can do is say "yes" or "no" to the president's choices. That is the "check" in the "checks-and-balances" system, to make sure no unqualified nominee becomes a federal judge. It does not give senators - and a minority of senators at that - the power to insist on judges who suit their own ideology.
Myth 4: The filibuster is about "free speech."
Fact: Historically, the filibuster has given senators in the minority a chance to speak on the Senate floor before the majority rushes to pass a bill.
But the current filibuster is not about the right to speak out. It is about blocking judges.
These nominees have been pending for months - some for years. The majority welcomes free speech and free debate - followed by a free vote.
Myth 5: The filibuster protects "the right of the minority" to veto nominees.
Fact: The Constitution requires a two-thirds vote for certain things. Appointing judges is not one of them. So the basic principle of democracy applies: The majority decides. The filibuster of judicial nominees turns majority rule on its head, because 41 of 100 senators can keep a judge off the bench without ever even voting.
Wendy Long is counsel to the Judicial Confirmation Network and a former clerk to Supreme Court Justice Clarence Thomas.
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