Political Hyprocrisy Rules Debate Over Judge’s Nomination

Time was, Republicans buried Bill Clinton’s judicial picks by the dozen in the Senate Judiciary Committee and Democrats indignantly demanded a yes-or-no vote for each.

That was then.

This is now, when Democrats block a far smaller number of President Bush’s court nominees – and Republicans heatedly insist the Constitution itself requires a vote.

“Give them a vote. A vote up or down,” Republican Sen. Orrin Hatch of Utah said recently, speaking of seven appeals court nominees Democrats have vowed to block. “That’s what we’ve always done for 214 years before this president became president.”

Except for more than 60 nominees whose names Clinton sent to the Senate between 1995 and 2000.

Republicans didn’t resort to filibusters in many of those cases. They didn’t need to.

They controlled the levers of Senate power at the time, and simply refused to schedule action on the nominations they opposed. Hatch, a former chairman of the Judiciary Committee, played a pivotal role in the blockade.

Inconsistency is hardly a Republican-only trait.

“According to the U.S. Constitution, the president nominates, and the Senate shall provide advice and consent,” Sen. Barbara Boxer, D-Calif., said in 1997.

“It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor,” said Boxer, who supported a move in 1995 to ease the filibuster rule.

Except that she joined other Democrats in successfully filibustering 10 of Bush’s first-term appeals court candidates. Bush has renominated seven of the 10, and they are at the core of the current struggle over rules governing judicial confirmation.

According to the U.S. Senate Web site, “filibuster” is from a Dutch word meaning pirate. It is embedded in the rules, available to any minority _ senators from one party, for example, or senators from one region _ who are trying to thwart the majority.

Filibusters aren’t forever, though. Under current rules, a 60-vote majority is enough to end one and assure final action on legislation or a nomination. That means the majority can be forced into concessions as members maneuver for the support needed to prevail.

Conservatives used the filibuster against civil rights legislation a half century ago. Liberals used it during the energy crisis of the 1970s when they sought to prevent passage of natural gas deregulation legislation.

Republicans and Democrats agree its use or threatened use has become more frequent.

Picking their words with excruciating care, many Republicans argue that before Bush came into office, there had never been a filibuster against a judicial nominee with majority support.

Except for Abe Fortas.

He was a Supreme Court justice whom President Lyndon Johnson wanted to make the chief justice in 1968. The nomination drew a filibuster by Republicans and Southern Democrats who opposed Fortas’ liberalism and were eager to inflict defeat on a lame duck president.

The roll call on a test vote was 45-43, a majority for Fortas, but short of the total needed to advance to a final vote. The nomination was withdrawn, defeated by a filibuster.

Then there was the case of two Californians Clinton nominated, Richard Paez and Marsha Berzon. Paez’s nomination languished for more than four years, Berzon’s more than two, before then-Majority Leader Trent Lott agreed to a vote. “I didn’t think it was right to filibuster judicial nominees then. And it’s not right now,” the Mississippi Republican said recently.

Except it took the threat of another filibuster before he agreed to a vote in 2000, officials say. Boxer intervened at the time, promising to block action on a Lott-backed nominee to the Tennessee Valley Authority unless there was final action on Paez and Berzon. Paez was confirmed with 59 votes, Berzon with 64.

A decade ago, Democratic Sen. Tom Harkin called the filibuster “a dinosaur, a relic of the ancient past.”

Frustrated at the multiple filibusters Republicans had launched in the run-up to the 1994 elections, the Iowa senator proposed a gradually receding filibuster, in which supporters would eventually need a 51-vote majority to prevail.

His attempt died on a test vote of 76-19.

Nine Democrats still in office backed the effort and now support efforts to block Bush’s controversial nominees. “Senator Harkin’s position has changed since then” on protecting minority rights, said a spokeswoman, Allison Dobson. She said that unlike the current GOP move, Harkin attempted to amend the rules in straightforward fashion rather than through a parliamentary ruling.

Among the 76 opponents of Harkin’s rules change were 24 Republicans still in office, many of whom now argue heatedly that judicial filibusters are an abuse of the rules.

Among them is Sen. Bill Frist, newly elected from Tennessee at the time.

Changing positions, he supported a different proposal several years later to change the rules. Now, as majority leader, he is the point man in the GOP effort to ban judicial filibusters and clear the way for confirmation of Bush’s nominees.


David Espo is the AP’s chief congressional correspondent.

© 2005 The Associated Press