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    The Filibuster-Proof Majority?

    BY W. James Antle III
    12/29/2004
    by W. James Antle III on 12/29/04.

    In a year likely to be filled with political conflict, few clashes loom larger than those involving the composition of the federal judiciary. The battle lines are drawn: President Bush has already announced that he will resubmit judicial nominees blocked during the last Congress and Senate Democrats are already signaling they won't relent in their opposition.

    Many of these judicial picks had the support of a majority in the Senate, but were blocked by Democratic filibusters for purely ideological reasons. This practice of denying a final up-or-down vote to nominees who could otherwise be confirmed has justifiably outraged Republicans and led them to consider measures to rectify the situation, such as employing the nuclear option of raising a point of order to strip Senate Democrats of their ability to filibuster judicial nominees.

    These proposals have triggered debates even among conservatives, with some arguing that judicial filibusters unconstitutionally impose a supermajority requirement for the confirmation of judges and others claiming that neither the Constitution nor current political conditions require Senate Republicans to eliminate such filibusters.

    The latter position seems more convincing to this writer. Filibuster rules require 60 votes to end debate on topics not limited to judicial nominations; since the 60-vote requirement specifically applies to ending the debate, not approving the legislation or nomination being debated, it does not technically require a supermajority for confirming judges. This distinction may seem unimportant if Senate Democrats abuse the filibuster rule to impose a de facto supermajority requirement, but this does not make judicial filibusters inherently unconstitutional and, as I will argue later, can be dealt with in other ways.

    It's true, as critics of the status quo point out, that judicial filibusters are a recent phenomenon. But a Federalist Society study critical of the practice makes just as strong a case that Senate Judiciary Committee hearings were a departure from longstanding Senate traditions. It does not necessarily follow, in the absence of other evidence, that the reason filibusters have not been employed during the judicial confirmation process in the past is attributable to a widespread belief that they were unconstitutional. That it is easier for the majority to bypass the Judiciary Committee than a filibuster under current rules does not change the basic fact that the Senate can adopt internal rules that in practice affect its constitutional "advice and consent" duties with respect to judicial nominations.

    While there are differences of opinion about the constitutionality of judicial filibusters, nobody is arguing that the Constitution requires the Senate to allow them. So why shouldn't conservatives simply support their elimination? TCS contributor James D. Miller has already cogently argued that Democratic retaliatory threats are overblown. Why not just remove this weapon from the Democrats' arsenal and be done with it?

    There remain good reasons, in my judgment, for conservatives to exercise caution. Detonating the nuclear option or rewriting Senate rules may create a precedent for future majorities to further weaken the filibuster. This should particularly concern small-government conservatives, as the filibuster can be an effective brake on government growth.

    Some of the biggest victories over the Clinton administration's government-expanding initiatives, from the Keynesian stimulus bill to the ill-fated energy tax, came before the Republicans took Congress in the 1994 elections, when there were a mere 43 Republicans in the Senate led by Bob Dole. The filibuster was a key component of these successes against bigger government. Ten years ago, most calls to limit the filibuster came from those on the left who sought to end "gridlock" and increase Washington's legislative output.

    It's easy for conservatives to lose sight of this in a time of unified Republican control of the federal government, when the filibuster could be used against tax cuts and free-market entitlement reforms as well as strict-constructionist judges. But conservatives by themselves are not a majority in the Senate; instead they are a majority of the Republican majority. And even under Republican control, initiatives that grow government - such as the pork-laden transportation bill, No Child Left Behind and the massive Medicare prescription-drug benefit - are still more common than across-the-board tax cuts and Social Security privatization bids. There may be times when procedural obstacles to lengthening Washington's reach will come in handy even if the Democrats don't soon retake the Senate.

    So should Republicans simply accept Democratic efforts to keep qualified conservative jurists like William Pryor and Janice Rogers Brown from getting a vote from the full Senate? Not at all.

    First of all, Democratic obstructionism comes at a high political price the party's senators may not be willing to pay forever. In the past two election cycles, nearly every competitive Senate race in which Democratic judicial filibusters were an issue ended in Republican victory. The most dramatic example was John Thune's defeat of outgoing Senate Democratic Leader Tom Daschle in South Dakota. The message to other red-state Democrats, particularly those up for reelection in 2006, is clear.

    This dynamic will only increase in the event of a Supreme Court vacancy. More Americans will pay attention than during appellate-court nominations, and even some who are not politically predisposed to support a Bush nominee will sympathize with the administration if Democrats try to prevent a Senate vote.

    Any negative public reaction would be intensified if Democrats were forced to read from telephone books, set up cots in the Senate cloakroom and mount a traditional filibuster. As Jack Kemp recently pointed out, returning to the real filibuster would make obstructionism come at a price. The principal objection to this seems to be that Republicans would not enjoy maintaining a quorum while smaller number of Democrats prattled on (Kemp's suggestion that the GOP leadership could have the sergeant-at-arms arrest senators probably didn't warm them up to the idea), but this is mainly a matter of political will. An old-school filibuster would be unlikely to last very long today.

    If the filibusters of President Bush's judge selections continue, it is all but certain that Senate Majority Leader Bill Frist and the GOP will find a way to put a stop to it. Let's hope if it comes to the nuclear option, there isn't any fallout for small-government conservatives.

    W. James Antle III is an assistant editor of The American Conservative.