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The confrontation over judicial filibusters is the greatest single Constitutional issue to confront the Senate in our lifetime.
That is because this issue involves the relationship between the Senate and the Presidency and the relationship between the Senate and the courts. In addition, it involves interaction between majority and minority parties within the Senate itself. The Senate confronts many important issues every year, but none of them touches the grand institutions of American democracy the way this one does.
The President has the Constitutional obligation to appoint judges. And the Senate has Constitutional responsibility to offer its advice and consent. For 214 years, the Senate gave every nominee brought to the floor a fair up or down vote. Most we accepted, some we rejected. But all those nominees got a vote.
In the last Congress, the minority leadership embarked on a new and dangerous course. They routinely filibustered 10 of President Bush's appellate court nominees and threatened filibusters on six more. Organized and fueled by the minority leadership, these filibusters could not be broken. By filibuster, the minority denied the nominees a confirmation vote and barred the full Senate from exercising its obligation to advise and consent.
The purpose of the filibusters was not only to keep the President's nominees off the bench, it was to wrest effective control of the appointments process from the President. Anyone who did not pass the minority leadership's ideological litmus tests would be filibustered. That meant a minority would dictate who the President should appoint if he expected the nominee to get a confirmation vote. This was a power grab of unprecedented proportions. And with more filibusters threatened for this Congress, the power grab would become even bolder and more entrenched.
Fundamental Constitutional principles were called into question. These included the separation of powers, checks and balances, the independence of the judiciary, and negation of the Senate's right to advise and consent. The minority claimed the right to impose a 60 vote threshold before a nominee could pass muster, for that is number needed to invoke cloture and break a filibuster. The Constitution doesn't say that. It only requires a majority to confirm. But for a minority spinning novel Constitutional theories, the real Constitution took a back seat.
The Republican majority tried at first to invoke cloture on each of the nominees. But driven by the minority leadership, the filibusters proved resilient to cloture. Then, we introduced a filibuster reform proposal and took it through committee. But it died without action because it was sure to be filibustered itself. So, we turned to the voters, and the election strengthened our majority. But the minority ignored the election and dug in its heels.
Faced with the certainty that the minority would expand its filibusters, Republicans faced a critical choice. Either accept the filibuster power grab as the new standard for the Senate, or restore the tradition of up or down votes for the nominees. My collective Republican Leadership decided to stand for a principle. And that principle is clear. It is clear without trimming or equivocation: every nominee brought to the floor shall get an up or down vote.
The Constitution gives the Senate the power to govern itself. And we were fully committed to use that power to establish a process by which a confirmation vote would occur after reasonable debate. This approach had a lot of precedent. The minority attempted to demean it by calling it the nuclear option. But the nuclear option is what they themselves detonated with their filibuster power grab. The proper term for our response is Constitutional option, because we would rely on the Constitution's power of self-governance to restore Senate traditions barring judicial filibusters.
Against their nuclear option, the Constitutional option is the only effective antidote.
The moment of truth was to have come on May 24. But action was preempted by an agreement between seven Republicans and seven Democrats to forestall use of the Constitutional option in exchange for confirmation votes on several nominees and a promise that filibusters would only be maintained in extraordinary circumstances. I was not a party to that agreement nor was the Republican Leadership.
Now we move into a new and uncertain phase. Under the agreement, this week the Senate confirmed Priscilla Owen to the Fifth Circuit Court of Appeals. Several more of the nominees will follow her. Priscilla Owen, a gentle lady, accomplished lawyer and brilliant Texas jurist was unconscionably denied an up or down vote for more than four years. The minority distorted her record, cast aspersions on her abilities, and rendered her almost unrecognizable. She had the fortitude to see the process through. And very late, but at long last, she was confirmed.
Without the Constitutional option, Priscilla Owen would never have come to a vote. Neither would any of the other nominees.
Without the Constitutional option, judicial filibusters would have become a standard instrument of minority party policy. The agreement is based on the trust that casual use of judicial filibusters is over.
Without the Constitutional option, the minority would have adhered to the path it was on and deal brokers would have had no deal to broker.
I am now hopeful but wary. As Ronald Reagan was fond to say, trust but verify. If nominees are confirmed and the sword of the filibuster is sheathed, then the Republican Leadership can be proud that its courage arrested a dangerous and destructive trend. If filibusters again erupt under circumstances other than extraordinary, we will put the Constitutional option back on the table and move to implement it.
Abraham Lincoln once said that when it is not possible to do the best, it is best to do what is possible. Standing fast for the principle of fair up or down votes, we have made real progress. That is something we all can celebrate. And that principle will be our guidepost as the rest of this great Constitutional drama unfolds.
Bill Frist |
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