May 17, 2005
by Rudy Boschwitz
Former Sen. Dave Durenberger and former Vice President Walter Mondale in a joint opinion piece said that if the Republicans go forward to limit filibusters of appeals court (only) judges, it will "profoundly and permanently undermine the purpose of the U.S. Senate...." (Star Tribune, May 5). Rubbish. Let me give a clearer picture.
In the last Congress, the Senate Democratic leadership orchestrated a filibuster of 10 of President Bush's appeals court nominees and threatened filibusters against six others. Filibusters, a tactic historically used only against legislation, were now targeted on judicial nominees and were a rock-solid obstruction to a confirmation vote. As a consequence, a centuries-long Senate tradition against filibusters of judicial nominees was broken.
In this Congress Democrats again vowed to block an up-or-down vote on these nominees, and threaten forthcoming nominees. These filibusters assert precedent-shattering power over the confirmation process and erode constitutional checks and balances.
For more than 200 years, just one judicial nominee was defeated by filibuster -- Abe Fortas in 1968 in extraordinary circumstances that are not comparable to the current situation. For more than 200 years, no minority leader ever organized a judicial filibuster. For more than 200 years, the Senate operated on the understanding that a majority of senators was entitled to carry out its constitutional obligation to advise and consent on federal judges. But now the Democratic leadership has cast aside Senate tradition to usurp the president's appointment power against nominees not meeting the minority's ideological benchmarks or litmus tests.
The Constitution clearly specifies the few instances where more than a majority vote is required for Senate approval. For example, two-thirds of senators are needed to ratify a treaty or to override a presidential veto. For nominations, only a majority is needed. It has been that way for 200 years. It is not the Republicans who are breaking constitutional and Senate tradition. It is those who wish to filibuster judicial nominees and impose an effective threshold of 60 votes to confirm an appeals court judge. The Democrats complain about the tyranny of the majority as they practice tyranny of the minority -- certainly not a Senate or constitutional tradition.
The Democratic leadership is imposing a unique burden on President Bush. A cloture vote to end a filibuster on a judicial nomination is simply not advice and consent within the Constitution's meaning.
The Democratic minority asserts it has no choice but to filibuster judges, because Republicans control the White House and Senate. Yet during much of U.S. history, this GOP control has been the case -- and filibustering judges was unknown. Has every Senate in American history been wrong constitutionally and traditionally?
The Constitution specifically grants the Senate the right to establish rules to govern itself. But the Senate faces a stark and regrettable choice. If the Senate exercises its constitutional rulemaking power to end judicial filibusters, the Democratic minority irresponsibly promises to bring almost all Senate business to a halt.
The Senate's majority leader, Bill Frist, proposes a broad reform in which judicial nominees will get a confirmation vote after 100 hours of debate. Moreover, he expressly guarantees to leave filibusters of legislation alone.
In the past Vice President Mondale's views have been different from those he now presents. Rule XXII -- the Senate filibuster rule -- was changed by the Senate in 1975, from requiring a two-thirds vote to only 60 votes to overcome a filibuster. Mondale wrote an approving article (Washington Post, March 18, 1975) noting that the Senate had been "held hostage by a small but determined minority..." and he was pleased to see the Senate "put its house in order so as to act quickly, forcefully and effectively..."
In the 1977 filibuster on natural gas deregulation, Mondale as vice president (and thus president of the Senate) took the chair in order to end the filibuster. In coordination with then-Majority Leader Robert Byrd, Mondale ruled 33 amendments out of order within minutes. Sen. Byrd, in his history "The Senate 1789-1989" (Vol. II, p. 155), described the scene:
"Pandemonium broke loose as Senators were denied recognition [by Mondale] to appeal the Chair's rulings declaring the amendments disqualified and both the Vice President and I were severely criticized for the extraordinary actions we had taken to break the post-cloture filibusters."
Sens. Ed Muskie, Frank Church, Paul Sarbanes and Gary Hart "vigorously protested." Hart stated, "The U.S. Senate has just seen an outrageous act."
So Vice President Mondale fully understands the necessity for the Senate to do the nation's business and to exercise its duty to change the rules to get it done. It is the responsible thing to do.
This article appeared in the Minneapolis Star Tribune on May 14, 2005.
Rudy Boschwitz is a former Republican senator from Minnesota, and chairs the advisory board for the Hudson Institute’s Center for Global Food Issues.
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