Senator Frist Approaches the Brink - New York Times

Senator Frist Approaches the Brink - New York TimesMay 18, 2005
Senator Frist Approaches the Brink

Of all the hollow arguments Senate Republicans have made in their attempt to scrap the opposition's right to have a say on President Bush's judicial nominees, the one that's most hypocritical insists that history is on their side in demanding a "simple up-or-down vote" on the Senate floor. Republicans and Democrats have used a variety of tactics, from filibuster threats to stealthy committee inaction on individual nominations, in blocking hundreds of presidential appointments across history, including about one in five Supreme Court nominees. This is all part of the Senate's time-honored deliberative role and of its protection of minority rights, which Republican leaders would now desecrate in overreaching from their majority perch.

Republican majorities blocked more than 60 judicial candidates during the Clinton administration by denying them committee hearings through the use of anonymous "blue slip" holds by individual lawmakers and a variety of other tactics just as effective, if less visible, than the filibuster. The majority leader, Bill Frist, who is zealously planning to smash the Senate rules, took part himself in a filibuster of a Clinton appeals court nominee.

But the majority leader is ignoring that history. With his eye clearly on a presidential run, he is playing to his party's extremist gallery by orchestrating a hazardous rules change that would block Democrats from following his example on a few of President Bush's most ideologically extreme and least qualified judicial nominees.

Democrats have hardly been obstructionists in their constitutional role of giving advice and consent; they have confirmed more than 200 Bush nominees, while balking at a mere seven who should be blocked on the merits, not for partisan reasons. This is a worthy fight, and the filibuster is a necessary weapon, considering that these are lifetime appointments to the powerful appellate judiciary, just below the Supreme Court. In more than two centuries, only 11 federal judges have been impeached for abusive court behavior. Clearly, uninhibited Senate debate in the deliberative stage, with the minority's voice preserved, is a crucial requirement.

The two nominees Senator Frist is putting forth first are singularly unqualified: The first, Priscilla Owen, has openly favored big business and flouted abortion rights on the Texas Supreme Court. The second, Janice Rogers Brown, has used her California Supreme Court post to belittle minority rights and rail against New Deal programs as a "socialist revolution." Taxpayers can at least be glad that the nominees' records are being publicly aired. Republicans relied on secrecy in bottling up Clinton nominations before they ever saw the light of debate.

Senator Frist, with the help of Vice President Dick Cheney, would sidestep a Senate precedent requiring two-thirds' approval for a rules change and instead have a simple majority strike down the filibuster on judicial nominees. He promises that there would be no effect on other legislation, but the damage would be incalculable. Democrats are already vowing procedural paybacks and gridlock.

A few moderate senators from both parties - realizing that the Senate's prestige is at stake, as much as its history - are seeking a compromise. We hope President Bush will step in to help find a solution. Otherwise, warns his fellow Republican Arlen Specter, chairman of the Senate Judiciary Committee, the result will be the harmful crimping of minority rights in a proud deliberative body and "a dark, protracted era of divisive partisanship."