DEFENDING THE ANTICONSTITUTIONAL

The Debate to End All Debate (NORMAN ORNSTEIN, 5/14/03, NY Times)

Dr. Frist, the Senate majority leader, last week called for changing the filibuster rule to compel eventual votes on judicial nominees. Failing that, Republican senators are contemplating a unilateral prohibition of filibusters against presidential nominations, forcing votes on the two appeals court nominees, Miguel Estrada and Patricia Owen, who are being blocked by Democrats.

This change--accomplished not through rules but by fiat--may allow Republicans in the Senate to get their nominees confirmed. (Fair or not, no court would likely intervene in an internal Senate dispute.) But the damage to the Senate would be enormous. [...]

[I]n 1961, Senate leaders adopted a two-track approach, allowing other business to go on while a filibuster took place, avoiding the cots-in-the-hall drama and pain of the old-fashioned filibuster. Instead, there would be periodic votes to see if the three-fifths quota could be reached.

This had the effect of making filibusters almost routine. Filibusters now happen all the time, but basically change nothing about Senate business--except to raise the bar for passage from 51 votes to 60. This is wrongheaded and unfortunate. For most issues, a sliding scale of cloture votes, to allow for extended debate but also force eventual votes, makes sense. (For significant and highly charged issues--including judicial nominations--the traditional 24-hour filibuster process still should apply.) Dr. Frist has proposed something similar for all presidential nominations. But reform should proceed in a straightforward fashion under existing rules.

Otherwise, Dr. Frist will be putting both the Senate and his own party at risk. The Senate is a unique and fragile legislative body. Its members have to get along for the simple reason that most basic Senate business--from scheduling action on a bill to calling a committee meeting--requires unanimous consent. Consensus and bipartisanship are absolutely necessary.

If Republicans unilaterally void a rule they themselves have employed in the past, they will break the back of comity in the Senate. Democrats could block Republican legislative efforts at every turn. For a short-term victory now, Republicans would reap the whirlwind.

A mere Senate rule, not contemplated by the Constitution (which specifically mentions super-majorities where it thinks them necessary), allows those who have lost the election to deny the president his choice of executive officers and judiciary members, despite the fact that majorities favor confirmation of those individuals, even within the Senate, never mind the Congress or country at large. More than just affecting staffing, it has worked a fundamental alteration of the Constitution, by changing the vote total needed for passage of a law from a simple to a super-majority. Yet Mr. Ornstein asks us to place "comity" above these concerns?

Here's an idea: if getting along is the central goal of the Senate, drop the filibusters, confirm the nominees and lets move on. Or are Democrats exempt from the obligation to consensus--which already exists behind the nominees, else filibuster would not be required to stop them? Posted by Orrin Judd at May 14, 2003 8:35 AM