It sounds nice, but we’ve heard this song before: President Bush and Democrats pledging to restore civility, to unite and not divide, to reach out and work together. In the Senate, the moment of truth — Bush’s judicial nominations — is coming soon. It could come even sooner if the GOP attempts to change Senate rules through the so-called “nuclear option.”
In the name of sanity and decorum, we urge a truce. Democrats should promise to resort to filibustering judicial nominees only in the most extreme cases of unacceptability. And Republicans should refrain from trying to change the chamber’s rules by simple majority vote. The alternative could produce the legislative equivalent of nuclear war: a wasteland.
Who started this feud is not the point. Democrats blame majority Republicans for blocking many of former President Bill Clinton’s judicial nominees, often unfairly, and often by denying them a hearing. Republicans can’t say that Democrats blocked Bush nominees as regularly when Democrats controlled the chamber, but they certainly can claim that Democrats escalated the conflict by filibustering to death 10 of Bush’s appeals court nominations over the past two years and threatening to filibuster six more.
“This is unprecedented in over 200 years of Senate history,” Majority Leader Bill Frist (R-Tenn.) told the conservative Federalist Society last week. “Never before has a minority blocked a judicial nominee that has majority support for an up-or-down vote on the Senate floor. Never.” Democrats counter that since 1969, Republicans have forced a half-dozen nominees to face cloture votes.
But Republicans are right to say that routine use of the filibuster is unprecedented. They also argue that the Constitution specifies that treaties must be approved by a super-majority (two-thirds), but that the Senate should “advise and consent” on nominations, implicitly by simple majority vote. Republican Senators have moved to take the Democrats to court, but we can’t imagine that the judicial branch will intervene in Senate business.
So it’s up to Senators to solve their own problems. The Republicans are talking about changing Senate rules to outlaw judicial filibusters — which normally requires a two-thirds vote to break — by asking for a ruling from the chair and then upholding it by simple majority vote. The Democrats have vowed to retaliate with their own nuclear bomb: the nonstop filibuster of everything, which would grind the distinguished body to a humiliating halt.
We submit that much of the Democrats’ rationale for regular filibusters was blown away by the 2004 election. Democrats said that, as a minority president, Bush lacked a mandate to “pack” the courts with conservatives. Well, he’s a minority president no longer. And in historic fashion, his party gained seats in both houses of Congress. By all means, Democrats should reserve the right to filibuster in an extreme case. But they should desist from routine filibusters. And Republicans, in turn, should desist from going nuclear.