The Atlanta Journal Constitution
December 30, 2004

By C. BOYDEN GRAY

The Circuit Court of Appeals nominees resubmitted last week to the Senate by President Bush were never defeated. To the contrary, each one had attained the Constitution's required 51-vote Senate confirmation threshold. Those votes were never taken, however, because Democrats used the parliamentary maneuver of prolonging debate (the filibuster) to obstruct confirmation.

The Democratic judicial filibuster is unprecedented and radical. While historically, nominees have been subject to withering questions, delays and heated Senate floor debate, nominees with majority support have never been permanently blocked by filibuster. Never before has a partisan Senate minority so recklessly threatened to derail the process unless it extorts a veto over presidential appointments.

If allowed to stand, the judicial filibuster implicitly rewrites the Constitution's Advice and Consent clause from 51 votes to 60 votes. The Senate Democratic leadership has already conceded this indeed, they have boasted about their "unprecedented" tactics to impose supermajority requirements on judicial nominees. Future Democratic presidents will rue this standard as much as the current Republican.

Unlike legislative debates, where textual modifications can be made in compromise, a judicial nomination is a binary question: yes or no? If the president makes bad choices, Democrats should attempt to defeat them legitimately and take their case to the American people. No one is asking for a rubber stamp just an up or down vote.

The filibuster is not sacrosanct. In fact, there are dozens of laws on the books today that prohibit filibusters on a variety of measures. If it is OK, for example, for fast-track authority to preclude filibuster of trade agreements, surely it is acceptable to preclude filibusters where they have never been used in 200 years. Republicans should restore Senate tradition by ensuring filibusters cannot be used where they were never intended: against a president's judicial nominees.