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Filibusters of Judicial
Nominees:
Majority Vote Should Trump Minority Rule
By Senator Rick Santorum
[Sen. Santorum is a Republican senator from Pennsylvania and chairman of the
Senate Republican Conference. This essay appeared as an op-ed in the
Washington Post for Sunday, April 17, 2005.]
It has been almost four years since President Bush nominated Texas Supreme
Court Judge Priscilla Owen to the U.S. Court of Appeals for the 5th
Circuit. Since then the Senate has held two hearings, conducted many days
of floor debate, analyzed Owen's judicial opinions down to the last comma
and attempted four times to invoke cloture so that debate could finally be
concluded and the Senate could take an up-or-down vote on her nomination.
Not only has Owen withstood this intensive examination, she has shown time
and again that the American Bar Association got it right when it unanimously
awarded her its highest possible rating. She was also reelected with 84
percent of the vote in 2000 and had the endorsement of every newspaper in
Texas. Owen has earned the support of a clear majority of senators.
She is not alone. This July will mark almost two years since the president
nominated Justice Janice Rogers Brown to the U.S. Court of Appeals for the
District of Columbia Circuit. Brown started life as the daughter of a
sharecropper in the segregated South and through hard work and determination
became the first African American woman to serve on California's highest
court. In 2002 she was called upon by her colleagues to write the majority
opinion more often than any other member of the California Supreme Court.
She was retained with 76 percent of the vote in her last election. In short,
Brown has shown herself to be unquestionably trustworthy, highly intelligent
and well within the mainstream, and she has earned the enthusiastic support
of a majority of the U.S. Senate.
Yet, these two jurists still have not been confirmed because a collection of
Democratic senators refuse to allow the Senate to conduct an up-or-down vote
on their nominations.
The 108th Congress witnessed an unprecedented campaign of obstruction. Of
the 52 men and women the president nominated to U.S. courts of appeals, the
Democratic leadership carried out filibusters against 10 and threatened
filibusters against six more. Never before had the minority leadership
killed even one appeals court nomination by filibuster, much less 16. Bush
has had a smaller percentage of his appeals court nominees confirmed than
any president in memory.
The Democrats' judicial filibusters are extreme and an arrogation of power.
Under the Constitution, the right to nominate judges belongs to the
executive, not to the Senate minority leader. Yet the minority leadership
has claimed a right to "veto" by filibuster any nominee who deviates from
the minority's extreme, ideological litmus tests. The president can submit
any nomination he likes, but he knows that even if a clear majority supports
his nomination, the Democrats will "filibuster-veto" it. Further, the
"advise and consent" function is in serious jeopardy if this new tactic of
filibustering judges continues. The Democrats have made it all too clear
that they are willing to let the Constitution's separation of powers fall by
the wayside if that is what it takes to push through their agenda.
Indeed, Senate Democrats have gone so far as to threaten to shut down the
Senate if they are not able to get their way. They have stood the
Constitution on its head and endangered both separation of powers and checks
and balances.
More troubling, the Democratic leadership has written the American people
out of the Constitution's system for appointing judges. The people have
only two methods for influencing the selection of federal judges: their
votes for president and their votes for senator. In November they rejected
the presidential candidate who vowed to impose an ideological litmus test on
all judicial nominees, and they chose the one who promised to appoint men
and women who would uphold the law. They voted out the Senate minority
leader who devised these destructive judicial filibusters and returned a
Republican Senate with an enlarged majority. Senate Democrats, however,
have opted to disrespect the people's voice and continue their audacious and
constitutionally groundless claims for minority rule.
If a senator opposes a nominee, that senator should go to the Senate floor
and explain why -- to the American people and the Senate. The senator
should try to convince 50 colleagues that they ought to vote against the
nominee. And when the nomination comes to a vote, the senator should vote
no.
For over 200 years, that was how senators opposed nominees. The time has
come for the Senate to reestablish that tradition, to end these destructive
judicial filibusters and to give all judicial nominees the up-or-down vote
they deserve.
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