By Tom Fitton

Senate Majority Leader Bill Frist has said he will do what it takes to end the unconstitutional judicial filibusters.  Why, then, has he allowed Senate lawyers to oppose a lawsuit that would accomplish this objective in court?

On May 2, Judicial Watch filed an appeal in its landmark lawsuit against the United States Senate to stop the misapplication of the filibuster rule to the judicial confirmation process, Judicial Watch, Inc. v. The United States Senate, et. al. (Civil Action 03-1066, U.S. District Court for the District of Columbia).  A liberal minority in the Senate, for the first time in U.S. history, is using Senate Rule XXII  (the filibuster rule) to block the confirmation of a president’s judicial nominees.  An objective of the lawsuit is to have the court declare this practice unconstitutional.

Republican leaders have chastised Senate Democrats for failing to provide an up-or-down vote on President Bush’s judicial nominees.  They have even gone so far as to threaten to initiate a seldom-used parliamentary maneuver to shut the filibusters down by declaring them unconstitutional – a move that would certainly prompt swift and severe retaliation from the Democrats.  Senate Minority Leader Harry Reid has promised to “screw things up” for Republicans in Congress if they move to block the filibusters. 

United States Capitol

Yet these same Republicans, through Senate lawyers, are asking the courts to protect the use of judicial filibusters.  (The Senate’s defense in Judicial Watch’s lawsuit was reportedly agreed upon by both Republican and Democrat leaders, including Senator Frist.)

Senate lawyers have argued that the courts should not address the constitutional concerns about the filibuster.  Both Democrat and Republican party leaders are actively working to protect a tactic that is not only unconstitutional, but harmful to the judicial system.

Through the abuse of the filibuster rule, a minority of liberal Senators has effectively hijacked the judicial confirmation process, requiring a supermajority of Senators (60) to confirm a judicial appointment, instead of the constitutionally-mandated simple majority of 51 Senators.  (It takes 60 votes to end a filibuster and 67 votes to change Senate rules.)

In so doing, Democrats have effectively shifted the balance of powers in favor of the Senate, trampled the tradition of majority rule, and worsened an already critical judicial vacancy crisis.  At the same time, they are flagrantly violating the Constitution and the will of the Founding Fathers.

How do we know the Framers of the Constitution would oppose judicial filibusters? 

First, the Founding Father’s were true believers in the concept of majority governance.  As Thomas Jefferson wrote, “the law of the majority is the natural law of every society of men.”  To allow a small minority in the Senate to bind up the judicial confirmation process is repugnant to this fundamental constitutional principle.

Secondly, the Founding Fathers were very specific as to when supermajorities are permissible.  There are six such exceptions:  ratification of the Constitution itself, overriding a presidential veto, Senate consent to a treaty, Senate conviction of an impeached official, the presence of a quorum in the House for the election of the President, and amending the Constitution.  Judicial confirmations are not among them.

Third, the power to appoint judges to the federal courts is enumerated in Article II of the Constitution, which describes the powers of the president, and not in Article I, which defines the powers of Congress.

Finally, there is senatorial precedent.  This is the first time in history that the filibuster rule is being abused in this manner.  Senators from both parties have abided by constitutional mandate to “advise and consent” through a simple majority up-or-down vote on judicial nominees for more than 200 years.

Of course, proponents of the judicial filibusters ignore the Constitution in favor of their own political agendas.  Simply put, liberals in the Senate do not want to confirm conservative judges, even those who are eminently qualified based upon every objective standard. 

Republicans have adopted a schizophrenic approach to the problem, whereby they complain about the constitutionality of judicial filibusters publicly and then oppose one real solution to the problem behind the scenes – Judicial Watch’s lawsuit against the U.S. Senate.

Some have argued that President Bush’s confirmation percentage is comparable to his predecessors.  This may be true, but never before have members of the Senate resorted to extra-constitutional means to block judicial nominations.  The initiation of even one single filibuster to one single nominee sets a precedent that could further complicate the confirmation process at the expense of those Americans who await justice.

In this instance, Senator Frist is correct.  In the face of mounting caseloads and delayed judicial resolutions the judicial filibusters must end.  Judicial Watch’s lawsuit provides Senator Frist and fellow Republicans the means to restore constitutional majority rule to the U.S. Senate.

Tom Fitton is president of Judicial Watch, Inc., a 501 (c)(3) non-profit educational foundation that fights government corruption and judicial abuse.