Filibuster versus an Up-Down Vote

Is it ever right to filibuster a judicial selection? Read Robert Freer’s article to see what the rules are and how they change.

By Robert E. Freer, Jr., President of The Free Enterprise Foundation

Thanks to the agreement of a centrist group of 14 senators, the United States Senate has again avoided a reckoning day on the fundamental issue of whether its traditions of unlimited debate can be maintained while meeting its constitutionally mandated responsibility to provide an up or down vote on the President’s judicial nominees. For the time being, the answer appears to be yes. It remains to be seen, however, whether the agreement reached in the early hours of May 23rd to allow votes on three of the most controversial judges will have any lasting value or merely postpones the reckoning day. On balance the Republicans came out ahead on this deal. Allowing judges Owens, Pryor and Brown to be voted up or down sets a standard of acceptability that will make it difficult for the minority to filibuster a Supreme Court nominee of a similar stripe, and indeed it is quite possible that one of these nominees could be re-nominated later this summer to fill an expected vacancy on the Court. Should the President choose to spring this trap on the Democrats, a youthful Mr. Justice Pryor would be a singular important presence on the Court for at least a generation.

To restate the issue, it is whether, the nomination by the president of highly rated judicial nominees will be decided by the Senate as contemplated in the Constitution through an up or down vote. As has been made clear by the confirmation of Judges Owen, Brown, and Pryor, sufficient votes exist to confirm nominees presently being considered, and that is the point of the filibusterers themselves. Those who oppose the nominees wish to ensure by filibuster that confirmation votes never occur. Their opposition has nothing to do with normal judicial fitness issues but on raw politics alone. It is based on speculation and fear, a fear, given the legendary independence of our judicial branch that quite likely is misplaced. It is also not so much directed at the current nominees but at the almost certain nomination of one and perhaps two new members of The Supreme Court before the Fall term begins on the first Monday in October.

One key difference between the Senate and the House of Representatives is that there are few if any limitations on debate in the Senate. From 1789 until 1806, there was a procedure to force a close of debate by filing a “motion for the previous question”. It was so seldom invoked, that Vice President Burr suggested that it be dispensed with, and from 1806 until 1917, there was no limitation on Senate filibusters other than the natural limitations of the human constitution.

In 1917 after the Senate was unsuccessful in ending debate on President Wilson’s request to arm American merchant vessels sailing in “harms way” , a bipartisan panel of ten senators recommended a modification of the Senate rules of debate to permit a two thirds vote of those present and voting to close down debate on pending measures. Subsequently, in 1949, 1959, 1975, and 1979 and again in 1986, whenever the existing rules on debate threatened to prevent a resolution by the full Senate in a vote on an important matter, the rule has been further amended to allow our democracy to work. These amendments reducing the margin now down to 60 votes have occurred because both parties have felt they were victims of unbridled debate, and both have sponsored measures to allow for an end of debate. SJ Res. 138, introduced by the Majority Leader two years ago, for instance, had many similarities to a measure previously introduced by Zell Miller and measures in 1995 by Tom Harkin and Joe Lieberman.

In his earlier proposal, Senator Frist offered to limit its application to matters of advice and consent to Presidential nominations rather than general legislative matters or other Senate procedures as would have occurred if the earlier sweeping proposals by Harkin and Lieberman had been accepted. Under his offer to the minority in this session, he suggested that it be limited to the judiciary only and that it require at least 100 hours of debate before it could be invoked to close debate.

In the words of John Adams, the primary criteria for selecting judges should be that they are …”men of experience on the laws, of exemplary morals, invincible patience, unruffled calmness, indefatigable application…{and} subservient to none” The passions of the day have gotten us away from this truth and clouded our vision. It is time for the Senate to come together on a process that will permit the orderly consideration not just of judges but all presidential appointments that require Senate advice and consent. Let’s hope the gang of 14 has led the way to get us past this unfortunate and shortsighted policy of filibustering of qualified nominees. Copyright © 2007 by Robert E. Freer, Jr. All rights reserved

About the author: Robert E. Freer, Jr. is President of The Free Enterprise Foundation. He is a Visiting Professor, at The Citadel and elected in 2005 to be their first John S. Grinalds Leader in Residence. A regular contributor to the Mercury, He can be reached by E-mail at The Citadel . Copies of his earlier columns can be found The Free Enterprise Foundation.

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