For the week of March 14, 2005
Posted on March 11, 2005
During the last session of Congress, Democratic senators blocked an up or down vote 20 times on 10 of President Bush’s nominees for the federal appellate courts. Filibusters were threatened against five more judicial nominees. With one possible exception, this had never happened before. The Senate has a 200-year tradition of majority rule when it comes to confirming judges. In fact, until the last session of Congress, the idea of not voting on a president’s judicial nominee once it reached the floor was unthinkable. In the spirit of compromise, I have offered a solution for avoiding what some in the minority call the “nuclear option” that would change Senate rules to prevent filibusters of President Bush’s judicial nominees. In remarks on the Senate floor two years ago, I said that I would reserve the right to vote against any judicial nominee of any president but that I would not filibuster the qualified court nominee of any president. That was before I knew whether the president would be named Bush or Kerry. If a few other senators of both parties would individually make this same pledge - to eventually allow up and down votes on all judicial nominees - then there would be an end to the discussion of the nuclear option. I have no doubt that changing the Senate’s cloture rule by a majority vote is clearly constitutional. The Constitution provides that 51 senators can change Senate rules to allow a majority to cut off debate on a president’s nominee of an appellate court judge. That does not mean, however, that we ought to rush to make that change in that way. The Senate protects the minority party’s rights for a reason. In his early writings about America, Alexis De Tocqueville warned that one of the potential failings of democracy would be the “tyranny of the majority.” South Africa succeeded in creating a constitutional government because the new black majority was willing to protect the minority rights of white citizens. And as we watch Iraq struggle to create a constitutional government, we know that a major sign of their success is whether they will be able to include and protect the rights of Sunnis who are only 20 percent of the country and who formerly dominated the country. Just as our Republican majority should be cautious about making changes that would lessen minority rights, I would respectfully suggest that the minority should be equally cautious about provoking such a change. The way to avoid a lengthy and damaging procedural battle is simply for individual senators to declare their willingness to support allowing an up or down vote of any qualified nominee for the bench by any president. This would apply to this Republican president’s nominees or to some future Democratic president’s nominees. I do not know what terrible grievance in the past caused such strong feelings on the other side that they would take these unprecedented steps to block an up or down vote on nominees once they get to the floor. It never happened like this before, and if it continues it will almost certainly force a Senate rules change. I hope we don’t come to that. I have taken a step myself to forgo some of my rights as an individual senator as one way to help to solve the problem. I hope others will do the same.