Sunday, May 22, 2005


Judicial Fillibuster nonsense

Listening to both sides argue over Bush's judicial nominations is enough to cause brain-rot. The republicans claim the fillibustering a judicial nominee is unheard of, the dems claim that it happens all the time. How can they both be right? Also, the dems wax indignant over the very idea of republicans fighting over these nominations when over 95% of Bush's judicial nominees have been confirmed. "A higher approval rate than Clinton!", they scoff. While this sounds impressive, it just doesn't pass the sniff test, their must be something the dems aren't telling, some qualifier that they left off of that statement.

Luckily, this new blog at NRO has given answers to both those questions which I repeat here.

First the fillibuster question:

In the last 24 hours, Sens. Richard Durbin (D, IL) Dianne Feinstein (D, CA) and Byron Dorgan (D, ND) have continued to spin the theory that 60 Clinton judicial nominees were “filibustered” by blue slips, holds, or other procedural devices, and that numerous other nominees in the 19th and 20th centuries were filibustered.
This is duplicitous. Two things are important when discussing filibusters – when and why one occurs. A filibuster happens when one or both of the means for limiting debate (unanimous consent or cloture) fail, not when they succeed. And temporary filibusters that do not abolish majority rule altogether can have a legitimate purpose (bargaining, delaying for more debate, etc.). Permanent filibusters intended to defeat a nominee who has majority Senate support are illegitimate.

Consider the words of moderate columnist Stuart Taylor:
“It is … misleading for Democrats and liberal groups to claim that there are ample precedents for this filibuster-forever tactic. Their trick is to count as "filibusters" even genuine debates and short-term stalls that ended in cloture votes and confirmation.

“The fact is that only one judicial nominee in our history (Abe Fortas) has even arguably been blocked by the filibuster-forever tactic that Senate Democrats have used since 2003 to block 10 majority-supported Bush judicial nominees. (Three of the 10 have withdrawn.)

“And even the 1968 filibuster of then-Justice Fortas's nomination to be Chief Justice of the Supreme Court is a pretty weak precedent. That was a real floor debate, over ethical missteps as well as judicial philosophy. It lasted only a little more than a week. Then, President Johnson, having lost a cloture vote, withdrew the nomination at Fortas's request. This decision came amid damaging disclosures that might have led to defeat in an up-or-down vote.”

Successful cloture votes are not filibusters. Generic delays or blockages are not filibusters. Blue slips and holds are not filibusters. For Durbin, Dorgan, and Feinstein to suggest otherwise is simply deceptive.

thank you NRO.

Now the 95% question:

I’m sure it is well known, but listening to Sen. Schumer (D, NY) drone on about President Bush getting “95 percent” of his judicial nominees confirmed requires a restatement of the truth.

The fight over President Bush’s judges has been confined to the important Circuit Courts of Appeal. Since the filibuster strategy’s inauguration in 2003, Senate Democrats have filibustered 10 of 34 appellate nominees, almost 1/3, and stopped another six in committee. In his first term President Bush had the lowest four year appellate confirmation rate of any modern president, 67 percent, according to AEI scholar John R. Lott Jr. He got 35 of 52 appellate judges confirmed.

Finally, read this little gem at NRO. I won't spoil the surprise for you...


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