Most readers here have undoubtedly heard about the filibuster of U.S. Court of Appeals nominee Priscilla Owen now taking place on the floor of the U.S. Senate, and are probably aware, to a greater or lesser degree, of the controversy surrounding the filibuster process.
As things stand now, the Senate, which consists of 55 Republicans, 44 Democrats and one Independent, has voted its approval of 208 of President Bush's judicial nominees for federal district court and appeals court judgeships. Democratic senators stated months ago that they will not approve 10 more nominees, one of which – Owen – was rejected during President Bush's first term, and several of which he renominated to court positions shortly after his inauguration in January.
One question that gets far too little attention is, what is so important about these 10 nominees? Although no one has gone on record explicitly with this position, it's been made clear by the Republicans' actions and rhetoric, including the President's, that there is something so special about these 10 that no other citizens in the U.S. apparently are capable of doing as good a job as these 10 are alleged to be able to do. In the past, many nominees have failed to be confirmed by the Senate, and in those cases, the nominations were withdrawn and others put in their place – but there is apparently something so remarkable about these nominees that their confirmation has become what in different circumstances would appear to be a "make or break" deal for this administration.
However, there is nothing obvious in the records of these 10 that suggest special skills or knowledge or reasoning beyond those that many other citizens may possess – in fact, the press has found many questionable decisions and philosophical statements of the 10 to suggest that just the opposite is true – which suggests that it is not the nominees' abilities that are at issue, but the egos of both the man that nominated them and the congressional faithful that support the President and the sovereignty of the Republican Party. For Owen, at least, we know that her career on the bench has been guided and supported, often through fundraising efforts, by Bush's chief political strategist Karl Rove.
In fact, there is every reason to believe that the mania to get these nominees confirmed for the various appeals circuits around the country is that Bush, Rove and other party leaders are convinced that rather than administer the law in a fair and impartial manner, as judges are sworn to do, these particular nominees will, through their official rulings, consistently support an ultra-conservative agenda that, at times, will be at odds with both the Constitution and with existing judicial precedent, including precedent laid down by the U.S. Supreme Court.
Although Owen's nomination would probably be approved by a majority of senators, who have generally voted along party lines (with the Independent, Vermont's Jim Jeffords, usually voting with the Democrats) on controversial issues over the past couple of years, Democrats last week mounted a "filibuster" – round-the-clock speeches intended to prevent a vote from being taken – regarding the Owen nomination. Under Senate rules that have been in effect for more than a century, a vote of 60 senators would be necessary to cut off the speech-making ("cloture") and force a vote, and it is considered unlikely that Republicans would be able to secure the five additional votes needed to obtain this "super-majority."
On Tuesday, however, Senate Majority Leader Bill Frist will likely employ what Sen. Trent Lott once dubbed the "nuclear option," which Republicans have recently been trying to rename the "constitutional option" after it turned out that "nuclear" didn't poll well with the citizenry. How that would work is that one senator would call for a "point of order," a procedural motion that takes precedence over regular Senate business, asking the Senate President – in this case, Vice-President Dick Cheney – to rule upon the question of whether the "super-majority" rule should apply to debate (the filibuster) on appeals court and Supreme Court nominees, or alternatively, the question may be phrased as to whether the U.S. Constitution requires that a super-majority of the senators is necessary to cut off such debate.
The Constitution in fact is silent as to how many senators must agree to effect cloture; that's an internal rule that the Senate itself adopted long ago, and one that has been used in the past by both sides to force a vote – as has the filibuster itself been used to prevent one, most notably regarding the elevation, in 1968, of Supreme Court Justice Abe Fortas to become Chief Justice. But it has been used by Republicans as recently at 2000, to prevent Clinton nominee Richard Paez from joining the Ninth Circuit Court of Appeals.
In any case, there is little doubt that Cheney would uphold the point of order, ruling that only a simple majority of senators is necessary to stop the speech-making and bring the nomination to a floor vote, which the Republicans would almost certainly win – at which point, for all practical purposes, the Republican Party would begin to assume control all three branches of government, at least until five or more Republican senators failed of re-election.
Conservative pressure groups, both religious and secular, have been ramping up their campaign to employ the "nuclear option" for several months, claiming that the nominees "deserve" an up-or-down vote (about which the Constitution is also silent, requiring only that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.")
The pressure groups have also claimed that the use of the filibuster is unprecedented when a majority of the Senate has made it known that it favors one position or the other – but that argument clearly betrays a misunderstanding of the filibuster concept. There is no possible disagreement that when a majority of either house of Congress supports a particular proposed nominee or law, that law will pass or that nominee will be confirmed. In most cases, with some few clearly-defined exceptions, majority rules. (It has recently been pointed out that the 55 Republican senators represent just slightly less than 50 percent of the U.S. population, but that is merely a philosophical argument; it cannot have any practical effect other than during an election.)
Therefore, the filibuster is the only mechanism available to the minority to express its vehement opposition to a nominee or measure which it feels is so adverse to the public good that taking up the Senate's valuable time for days or weeks on end to prevent action on the nominee or measure is the most appropriate manner by which to express that opposition – and hopefully to convince the majority, or some members of it, to reconsider their position and, in this instance, prevail upon the President to choose another nominee, hopefully one which will be more acceptable to both sides – as 208 of them already have proved to be.
The danger, therefore, of the majority changing the existing rule in order to squash the filibuster is that the minority view is left with no voice in nominations at all; whoever the President nominates, no matter how conservative, no matter how out-of-mainstream-thinking that person is, will become a district court or appeals court judge – or a Supreme Court justice, as will likely be the situation at least three times before Bush's term is up in 2008. The constitutional system of checks and balances between the three branches of government will then be effectively nullified – and the consequences of that occurrence are too horrible to contemplate, not only for free sexual speech in America, but for whatever other liberties are still enjoyed by U.S. citizens.
