The Importance of Selective Filibusters Against Bush’s Court-Packing Plan

With the recent nomination of William Pryor to the U.S. Court of Appeals for the 11th Circuit, the Bush administration has clearly signaled that it will continue to nominate far-right ideologues for crucial appeals court seats rather than engage in the kind of consultation and compromise that would result in the nomination of more moderate nominees that could win significant bipartisan support.

The administration’s continuing refusal to seek a bipartisan solution, even though the Congress like the nation is closely divided, leaves the modern-day filibuster, the Senate procedure requiring 60 senators to agree to a vote on significant issues, as one of the Democrats’ only tools for resisting the administration’s court-packing plan. Failure to use that tool would mean acquiescence in an ideological takeover of the federal judiciary by judicial activists who are eager to turn back the clock on decades of legal precedent and social justice progress. It is imperative that Senate Democrats make judicious use of the filibuster in order to preserve important legal principles and indeed the very constitutional framework that permits the federal government to defend individual liberties and address national problems.

While Senate Judiciary Committee Chairman Orrin Hatch and some of his colleagues have repeatedly suggested in recent weeks that use of the filibuster is inappropriate and even unconstitutional, the historical record is clear. Both Republicans and Democrats have often demanded 60 votes on what each considered controversial nominations as well as legislation. During the Clinton administration, a number of Republican Senators repeatedly used the filibuster, which has a long and bipartisan pedigree. But they also made extensive use of the much less open and accountable tactic of secret holds by a small number of senators to delay and prevent votes on an unprecedented number of appeals court nominees. Indeed, one third of the Clinton circuit court nominees were blocked between 1995 and 2000. Sen. Leahy has recently described Senate Republicans’ approach during the consideration of Clinton administration nominees, which permitted one or a handful of senators, through secret holds, to prevent a nominee from even getting a hearing. Republican leaders who participated in such a scheme have little credibility suggesting that a filibuster is unconstitutional because it permits 40 senators to prevent a final vote. In fact, in 1994, while some Republican senators were engaged in a filibuster against a Clinton administration nominee, Hatch called a filibuster “one of the few tools that the minority has to protect itself and those the minority represents.”

That tool is especially important given the Bush administration’s actions and Hatch’s growing willingness to unilaterally discard bipartisan agreements and violate longstanding committee rules in order to turn the Judiciary Committee and the Senate into a rubber stamp for Bush’s judicial nominees.