Kennedy’s View of Senate Filibusters Mangles Tradition
My late colleague Sen. Daniel Patrick Moynihan (D-N.Y.) once said that you are entitled to your opinion but not to your own set of facts. But his admonition has not prevented some who are trying to make the filibuster standard confirmation procedure from inventing their own version of Senate and constitutional history.
In his April 6 column in these pages, Sen. Edward Kennedy (D-Mass.) warned against action that would “explode 200 years of Senate practice.” But he’s two years too late. Two centuries of Senate practice exploded in 2003 when Senate Democrats began using the filibuster against majority-supported judicial nominations.
The Senate keeps track of our legislative and executive business on separate calendars and handles them in separate sessions. While the filibuster had been an accepted part of the legislative process, it had not been used to defeat judicial nominations on the executive calendar.
Instead, for 215 years, Senate practice was to give judicial nominations reaching the Senate floor a final confirmation decision. All four Clinton judicial nominees on whom we took a cloture vote, for example, were confirmed. And, as in the cases of controversial appeals court nominees Marsha Berzon and Richard Paez, those cloture votes were deliberately held to prevent a filibuster and to guarantee what filibusters are now denying to President Bush’s nominees: an up or down vote. The explosion of traditional Senate practice has already occurred, with Sen. Kennedy and his party lighting the fuse.
Sen. Kennedy seems to have changed his position. On Feb. 20, 1975, he insisted that “the majority has rights, too,” arguing that after “reasonable debate” is over, the minority should not be able to use the “shelter” of the filibuster. Calling for filibuster reform, he argued that “too often, extended debate has become a euphemism for obstruction.” The Senate, he said, should operate “under the principle of majority rule, except as the Constitution otherwise provides.” The Constitution does not so provide for judicial confirmations, meaning that the 1975 Kennedy standard would prohibit the current judicial nomination filibusters.
Just a decade ago, Sen. Kennedy went even further, voting against tabling an amendment to the cloture rule that would have ended even the legislative filibusters that have so long been part of Senate tradition. Contending that judicial nomination filibusters that had never been part of that tradition are now the very marrow in the Senate’s bones is a bit hard to swallow.
Sen. Kennedy now claims that returning to Senate tradition would be a “flagrant abuse of power.” Methinks he doth protest too much. One approach to solving this judicial nomination filibuster crisis would utilize a parliamentary ruling to change Senate procedure without formally changing Senate rules.
It might properly be called the “Byrd option” because Sen. Robert Byrd (D-W.Va.), when he was Majority Leader, used it several times. In 1977, for example, he obtained a parliamentary ruling prohibiting certain kinds of amendments after debate on a bill had been limited. In 1979, he obtained a parliamentary ruling that, despite the plain language of Senate Rule 16, took away from the Senate the decision on whether amendments to appropriations bills are germane. In 1980, he challenged a parliamentary ruling against making non-debatable motions to proceed to a specific nomination on the executive calendar. And in 1987, he obtained a parliamentary ruling changing voting procedures under Senate Rule 12.
In each case, by majority vote, the Senate exercised its constitutional authority to determine its rules and procedures by endorsing Sen. Byrd’s position. And in the 1977 and 1980 examples, the Byrd option limited Senators’ right to speak.
Look it up: It’s all in the public record. What is not in the public record is any protest by Sen. Kennedy that his own party’s leader was abusing power, exploding Senate practice, or violating the rule of law. The one thing that has changed right along with Sen. Kennedy’s position on the filibuster is the party controlling the White House.
There is one thing on which it appears we can all agree. Sen. Kennedy wrote on April 6 that “the Constitution specifically gave the Senate the power to make its own rules.” Whether by utilizing the Byrd option to change Senate procedure or by formal amendment to Senate rules, we have done just that when the minority’s right to debate has inappropriately undermined the majority’s right to decide. For more than two years, Democrats have rejected the Senate’s tradition of refusing to use the legislative filibuster against judicial nominations. If an acceptable compromise cannot be found, and found soon, the Senate must exercise its authority and restore that tradition.
Sen. Orrin Hatch (R-Utah) is a member of the Judiciary Committee and previously served as chairman of the committee.