Let the voting begin

It is not a misapplication of the term “arena” to apply it to the chambers of the U.S. House of Representatives and the U.S. Senate. More games are played there than at any two athletic venues in the world. A game currently under way in the Senate stadium is the judicial nomination contest.

Some of us take sides with Republicans who want to move forward on the nomination process, while others side with Democrats who want to delay the process.

This flap comes down to a simple disagreement that has existed for decades, which is that each party has its own idea about the kind of person who should sit on the federal bench. When the Democrats are in power, the nominations favor activists who view the Constitution as a collection of broad principles and concepts that allow judges to draw on personal beliefs and values when forming their opinions on cases. When the Republicans are in power, the nominations tend to be of originalists who strictly interpret the language of the Constitution, and who believe judges should not overturn the will of legislative majorities unless a constitutional right has been or would be violated.

The device of choice for Democrats in delaying voting on federal judicial nominations is the filibuster. Essentially, a filibuster is a tactic of delaying action on a bill by talking long enough to wear down the majority in order to win concessions or force withdrawal of the bill. The record for the longest individual speech goes to South Carolina's J. Strom Thurmond who filibustered for 24 hours and 18 minutes. Theoretically, filibusters can go on indefinitely, until enough votes are mustered, or one side gives in.

A group that cannot muster enough votes to defeat a bill by vote normally employs the tactic. Filibustering is possible in the U.S. Senate because Senate rules allow unlimited debate on a bill. A group or a single member may carry out a filibuster, and the speech need not be related to the bill under discussion. Calling for a vote to limit debate (cloture)—which requires 60 votes, the votes of three-fifths of the entire membership, in the U.S. Senate—or holding around-the-clock sessions to tire the speakers are measures used to defeat filibusters.

The Democrats threaten to use the filibuster not to defeat a bill as it has traditionally been used, but to delay action on judicial nominations, for which the filibuster has never been used. It was utilized one time to block the nomination of a sitting Justice to the Chief Justice position.

Normally, nominations are passed out of committee and voted on by the full Senate. A simple majority of 51 in favor is all that is required to confirm a nominee. If Democrats employ a filibuster, the nomination cannot be voted on unless 60 Senators vote to end the filibuster, effectively placing a higher standard on the nominee under consideration than has ever been placed on a nominee to a federal judgeship before. A nominee may have 59 senators who think he or she ought to be confirmed, a substantial majority, and certainly well beyond the normal standard, yet that nominee will not be confirmed because ending the filibuster requires 60 votes. Some believe this is unfair. I am one of them.

Republicans threaten to change Senate rules, which as the majority party they have the right and power to do, so that the filibuster may not be utilized to avoid voting on judicial nominees. Democrats cried “foul,” touting the filibuster as a valued legislative tool that is employed by both parties, which is true.

My own opinion is that Democrats ought to drop their opposition and give each nominee an open vote like other judicial nominees throughout the history of the United States. Let senators vote up or down on each nominee. If they are confirmed, fine. If not, that’s fine, too. That is the constitutional process. That is the right thing to do.

The next time the Democrats are in power, they can nominate activists to the bench to counter whatever perceived imbalance may have occurred during this period of Republican dominance.

Short of the Democrats giving up their imposition of what amounts to a super-majority requirement to confirm these nominees, Republicans need to do whatever is required to get these nominees before the full Senate so that the Senate can do its duty.