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Maine has no use for filibusters

Portland Press Herald
Monday, May 2, 2005
By Michael A. Duddy

As the looming showdown over filibustering some of President Bush's judicial nominations draws closer to a culmination, the terms of the debate become more strident but less enlightening.

Within Maine, however, a good case can be made that Maine's historical precedent, Maine's own judicial confirmation process and Mainers' own sense of decency all support a rule change to prevent judicial filibusters in the U.S. Senate. Thomas Brackett Reed of Portland served in the U.S. House of Representatives from 1877 to 1899. In 1889, while Reed was serving in one of his two stints as speaker of the House, Reed ended the practice then known as the "silent filibuster."

The silent filibuster - refusing to answer during the roll call - was used by the minority to defeat a quorum, thereby preventing the House from conducting business. Reed, however, ordered the clerk to record the names of members physically present, even if they were silent. A great debate then ensued, which lasted for several days. Reed was pilloried from both sides of the aisle and earned the nickname "Czar Reed."

Nevertheless, Reed's principled stand against the silent filibuster is part of Maine's legacy to the nation, and provides a uniquely historical Maine precedent for eliminating the filibuster of judicial nominees. Much of the national debate today involves a discussion about whether majority or minority rights should prevail in the judicial confirmation process.

Interestingly, at the state level, the Maine Constitution and legislative practice firmly support the rights of the majority to control the outcome of judicial nomin- ations. Under our state constitution, the governor nominates judicial officers subject to confirmation by a majority vote of a legislative committee comprised of members of both houses. The party in the majority controls the composition of the committee, and thus determines the outcome. Although the committee's vote "shall be reviewed by the Senate," it takes a 2/3 majority to override the committee recommendation. In other words, the minority doesn't stand a chance.

RULES PROHIBIT THEM

Moreover, the parliamentary rules of both the Maine Senate and House prevent the filibuster of a judicial nomination (or anything else, for that matter).

Accordingly, the values embodied in the Maine Constitution and legislative practice favor doing away with judicial filibusters at the national level.

Gov. Baldacci has recently nominated lawyer Warren Silver of Bangor to the Maine Supreme Judicial Court. Silver is a wonderful person and a wonderful lawyer, and he deserves a swift and successful confirmation process.

Silver is, however, the personal attorney for the governor and the personal attorney for at least one major donor to the Democratic Party.

Suppose the Maine Senate did allow for filibusters. Can you imagine the reaction among Maine citizens if the minority party filibustered Silver's nomination? Mainers' sense of decency and fair play would not stand for such a tactic.

PEOPLE ARE DIFFERENT

The point is that filibustering legislation is inherently different from filibustering people. People have jobs, families, reputations and lives to get on with. The political process has already become so acrimonious at the national level that many good people simply refuse to get involved.

Permitting filibusters of real people nominated to serve as judges extends political acrimony to a realm where it doesn't belong, and can only chill the willingness of good people of diverse political views to step forward and be nominated.

All of the individuals nominated by this president, but filibustered or threatened with filibusters, are good people and good citizens.

They have all achieved professional success, have earned the respect of their peers, and have been given "highly qualified" or "qualified" ratings by the American Bar Association.

One may or may not agree with the nominees' judicial philosophy or politics. However, Maine history, the values embodied in our own nomination process and Mainers' sense of decency require that they be given a prompt and fair up-or-down vote in the U.S. Senate.

- Special to the Press Herald