Politics: Boschwitz and Ornstein Weigh in on the Filibuster
May 27th, 2005,Even after this week’s agreement between Democrats and Republicans in the U.S. Senate on President Bush’s judicial nominations to the federal courts, the issue of the filibuster is not likely to go away. As a result, I thought it was important to include opposing commentary on the issue by two figures who happen to be Minnesotans, former Republican U.S. Senator Rudy Boschwitz and scholar Norman Ornstein. Both have published articles on the subject in the Star Tribune recently.
Boschwitz’s opinion piece is a rejoinder to an earlier Star Tribune essay by his fellow former Minnesota senators Walter Mondale and Dave Durenberger (discussed in this column on May 6), who criticized Republican efforts to end the filibuster.
Unlike the latter two ex-senators, Boschwitz supports the current Republican efforts to end the filibuster for judicial nominees. He writes that the Democrats broke “a centuries-long Senate tradition against filibusters of judicial nominees” when they filibustered 10 Bush judicial nominations during the last Congress. He says such judicial filibusters “assert precedent-shattering power over the confirmation process and erode constitutional checks and balances.” The filibuster, he claims, is “a tactic historically used only against legislation.” He claims that the 1968 filibuster of Abe Fortas was done under “extraordinary circumstances that are not comparable to the current situation,” though he does not elaborate on why that is so.
Boschwitz also writes, “The Constitution clearly specifies the few instances where more than a majority vote is required for Senate approval,” and he mentions the two-thirds majority needed to ratify a treaty or override a presidential veto.
Norman Ornstein, a resident scholar at the American Enterprise Institute, a conservative think tank, rebuts several major Republican claims on filibusters of judicial nominations in a May 18 article published in Roll Call, the Capitol Hill newspaper. First, he criticizes the notion that there is a tradition of not filibustering judicial nominations. He says that there is no way to deny that the filibuster against Fortas was a historical precedent; it was a true filibuster.
Second, he attacks the notion that there is a tradition of giving judicial nominees an up-or-down vote on the floor of the Senate. “I have searched through a whole lot of history of the Senate,” he writes, “from George Haynes’ classic volumes to memoirs and other literature. I have yet to read anything about some long-standing tradition, custom or unwritten rule against filibustering judicial nominees.”
Third, he rejects the idea that there is “a two-century-plus tradition of giving presidents up-or-down votes on their judicial nominations.” He writes that hundreds of judicial nominations have been killed in committee. Though they weren’t filibustered, they were often killed by a single senator under a tradition that gave a home-state senator veto power over nominees. Ornstein notes that this latter tradition was ended during the Clinton administration by Orrin Hatch when he was Judiciary Committee chairman.
Ornstein does not address the issue of whether the nominees who failed to reach floor votes had majority support or not, but the clear implication is that many of them would likely have had majority support. Thus, the Senate’s advice and consent to the president has involved rejection of nominees without a floor vote. Why did these rejected nominations not involve a filibuster? “Because it was easy enough to kill most of the controversial ones without resorting to a filibuster,” Ornstein writes.
Ornstein closes his Roll Call essay with harsh criticism of Republican actions on judicial nominations during the Clinton years:
“There is no record I can find of a historical period in which the Senate systematically killed such nominations. Rather, they tended to be done on a case-by-case basis. But that did change in the second Clinton term, when dozens of judicial nominees, including many to appeals courts, were denied hearings, in some cases for four or five years, not on the basis of any charge that they were ideologically extreme or unqualified, but rather because they represented slots on important courts, worth keeping open in case the next president turned out to be a Republican.
“If we want to look for a breach in Senate traditions, that is where to start. And the failure to bring more than 60 to the floor for up-or-down votes makes one gape at Frist’s astonishing comment that the standard in the Clinton years was 51 votes. For these 60 would-be judges, it was a one-vote standard–that of the chairman of the Judiciary Committee.
“There are longstanding traditions in the Senate regarding judicial nominations. Those traditions call for a vigorous and independent Senate playing its role of advice and consent. They understand that judicial nominations, because they represent lifetime appointments which cannot and should not be easily rescinded, require higher hurdles than simple legislation which can always be amended or repealed.”
In another article printed in the Star Tribune May 22nd, Ornstein further criticized Republicans for their proposed method of changing Senate rules to end judicial filibusters. Such a change would allow a simple majority to change the Senate’s rules and create a new precedent: “Namely, that whatever the Senate rules say–regardless of the view held since the Senate’s beginnings that it is a continuing body with continuing rules and precedents–they can be ignored or reversed at any given moment on the whim of the current majority.”
If Ornstein is correct, and he certainly appears to be, then it is disturbing that little of this historically accurate information is a part of our current debate on judicial nominations.