‘Fresh Start?’ Nah!

Posted May 13, 2003 at 6:21pm

It would be great if, as President Bush recommended last week, Republicans and Democrats made a “fresh start” on the issue of judicial nominations. Unfortunately, his call for new procedures for nominating and confirming federal judges came on what Republicans were calling “Obstruction Day,” and his Rose Garden remarks clearly were designed to put pressure on Democrats who are filibustering two of his appellate court nominees. For these, and other reasons, the chance of a “fresh start” is zero.

The blame for the current impasse rests more heavily on Democrats than on Republicans. It’s the Democrats who have escalated the judicial war by making it party policy to filibuster nominations they oppose. So far, they’ve used the tactic against two Bush selections, Miguel Estrada and Priscilla Owen, but they’ve indicated they may do so against two more, Carolyn Kuhl and Charles Pickering. Moreover, they defend their right to do so, indicating that what once was regarded as an extraordinary step now will be regular policy.

There’s no question that Republicans also bear a share of the blame for politicizing the judicial nomination process. They blocked 60 Clinton nominees by denying them hearings in the Judiciary Committee or by placing “holds” on them to prevent a floor vote. In two cases, some Republicans tried to filibuster but lost cloture votes. Bush, if he were truly interested in making peace in the Senate, could have covered this history in more than one sentence of his Rose Garden statement.

Part of what Bush has proposed to do about what he called “a crisis in the Senate” and “a crisis in our judiciary” makes some sense: Judges planning to retire would give a year’s notice, the president would nominate a successor within 180 days and the Senate would process the nomination within another 180 days. However, other procedural reforms being put forward — mainly by Republicans — make no sense in the present environment.

Some GOP Senators want to sue the Senate on the grounds that filibustering nominees is an unconstitutional imposition of a “super-majority” requirement. The courts will never accept the case. Republicans wisely dropped the so-called “nuclear” option of changing Senate rules on the filibuster question not by the two-thirds vote called for in the rules, but by a majority vote on a ruling from the Parliamentarian. That would have led to total chaos, with Democrats blocking action on any legislation. Republicans now are pushing a third option — a rules change allowing the number of votes required to end a filibuster to fall from 60 to 51 on a fourth cloture vote.

The 60-vote requirement for cloture is not sacrosanct. It was adopted in 1949 to replace a two-thirds requirement. But in the present Senate atmosphere, no rules change will be passed. So, this crisis will continue. It’s going to take a decisive election to break it — or a genuine agreement between the parties to make a “fresh start.”