May 19, 2005

The Head-in-the-Toilet Test

The debate about filibusters has narrowed to a single proposition — that Republicans, eager to push through George W. Bush’s nominees to the federal bench, have decided to change the rules of the Senate, and thus change the terms under which the august body does its business.

This claim casts Republicans as bad losers who face defeat not with equanimity and courage, but by whining and changing the rules. Most public-opinion polls frame the issue in precisely this way, and predictably invite the public to take a dim view of Senate Majority Leader Bill Frist’s attempt to clarify the proper uses of the filibuster. Frist supports its use for all legislative and internal Senate deliberations, but never for judicial nominations — and, one presumes, other matters that involve relations with another branch of government.

Democrats buttress the bad-loser theme by grousing that Republicans sabotaged 67 judges during the Clinton years.

Let’s assess the claims, starting with the “change-the-rules” allegation.

There is no Senate rule governing the proper uses of the filibuster. None. This means there is no rule to break or change. Instead, senators traditionally have relied on a quaint little thing called trust.

For more than two centuries, honorables granted presidents the courtesy of a vote on major nominations. Not once in the period between 1789 and 2003 did a minority of the Senate deliberately prevent a vote for a judicial nominee who enjoyed the support of a majority of senators. Nobody ever contemplated such a thing. This doesn’t mean senators rubber-stamped nominees; they rejected dozens of judges — but they did so in a fair vote on the Senate floor.
Consider a mundane analogy. A couple of years ago, my young son decided to shove his sister’s head into the toilet. My wife and I never anticipated such a thing, so we had to issue an edict: No sticking your sister’s head in the toilet! We didn’t “change” the rules. We created one to deal with something completely unexpected.

By the same token, Senate Majority Leader Bill Frist has proposed a rule to deal with the unanticipated abuse of the filibuster; Senators will not be able to bottle up nominations in committee or block votes on the floor. His suggestion would restore the tradition of permitting votes for the president’s judicial selections. This wouldn’t have been necessary as recently as three years ago — until, that is, Democrats began practicing the legislative equivalent of shoving my daughter’s head in the toilet — and they’re now complaining because Frist wants to make them cease and desist.

The second allegation, that Republicans are getting a taste of their own medicine, is half true. When Bill Clinton left office, 67 federal judgeships lay vacant. Clinton had offered no nominees for 26 of those seats. That left 41 openings — 24 for the U.S. District Court and 17 for the Circuit Courts of Appeals (the highest level below the Supreme Court). Of these, nine others languished because they had been submitted too late for the FBI to completed required background checks.
There’s another part of the story, however: Democrats dished out even worse abuse to President Clinton’s predecessor, George Herbert Walker Bush. When Bush 41 left office, 97 federal judgeships remained vacant, and the Senate had bottled up 54 nominees. Nine of the 54 had been nominated for the circuit courts of appeals. For those who are mathematically challenged, the judiciary was 30 places lighter when George H.W. Bush left office than when Bill Clinton did, and the Senate held up 13 more judges in the Bush years than the Clinton era.

One final note: Both parties act as if the filibuster were a cherished and valuable tool of statecraft. It’s not. Virtually every filibuster in American history was employed for one reason only — to hold back the tide of history and to frustrate the clearly expressed will of the people. Senate Democrats filibustered the Civil Rights Act because they wanted to preserve Jim Crow. Individual senators have filibustered for causes as idiotic as preventing the government from cutting out a sweetheart subsidy for a business owned by a senator’s friend. Here’s a challenge for historical nerds in the audience: Name one filibuster conducted in order to advance a noble purpose. Jimmy Stewart’s performance in “Mr. Smith Goes to Washington” doesn’t count.

Democrats, whether they want to admit it or not, are behaving again like Jim Crow’s bodyguards. They’re defending judges who, under the protection of black robes and lifetime tenure, have waylaid organized religion, traditional marriage, and values and institutions that long ago laid the foundation for domestic tranquility. Ironically, they distrust the institution after which their party is named: democracy. They don’t want you and me to have the final say on such things as abortion. That, in their view, is best left to judges.

That view no longer enjoys majority support, which is why the party of Jefferson decided to abandon tradition. Democrats have become an Angry Party and now, having been caught throwing a temper tantrum, they’re doing everything possible to avoid submitting to adult discipline.

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