The Republican Senate leadershp and the White House, as everyone knows, is threatning to seek a ruling by Vice President Cheney halting filibusters against federal appeals court and Supreme Court judges. They are doing so, according to their propagandists and supporters among the religious right, to make the courts safe against "activist judges" who twist the law to promote an anti-religious, secular agenda. Yet it would be extremely difficult, I think, to find any federal court decision that would trample so blatantly upon the law that it claimed to interpret as the Republican stratagem does upon the Senate rules.
As usual, major media outlets are giving the impression that the merits of the case are roughly evenly divided. To do so, they have had to avoid giving the text of Senate Rule XXII, which sets the procedures for cutting off debate. Here is the key provision:
2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:
"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
The current controversy obviously involves two provisions of this rule. The first question raised is whether the confirmation of a judge is a "motion, measure, or other matter pending before the Senate," and I do not see how anyone could argue that it is not. But the second passage which I have italicized is even more critical, because it requires not 60 votes, but 2/3 of all Senators present and voting, to alter the Senate rules, which, obviously, is what the Republican leadership wants to do. They, however, propose to do so merely by moving to ask the Vice President, in the chair, to rule that the above language does not apply to nominations for the Appeals Court--an idea for which there is absolutely no basis in the text--and then to sustain that ruling with a simple majority, rather than the 2/3 vote that the rules plainly require.
Now in an attempt to find out whether any major media outlet has brought the above provision of the rules to the attention of the American people, I did a google search for the second passage that I italicized above. The answer appears to be no. Several bloggers had printed it, but no newspaper or magazine had--with one fascinating exception. What should pop up but a May 2003 article by Byron York in the National Review online. It discussed the judicial filibuster issue quite evenhandedly, and included the following interesting paragraph:
"Nevertheless, some Republicans are studying Senate precedents with an eye toward advancing the idea that Rule 22 does not apply to judicial nominations. But as attractive as that idea seems, many Republicans remain skeptical. 'If they're going to do it [break the filibusters] by having the chair say X is really Y,' says one, 'that would be parliamentary activism.'"
So it would, but no one reading the press today would know it.
While I do not relish returning to one of my favorite themes yet again this morning, I really have no choice. Once again we see that Republicans born between 1944 and 1954 or so have the same attitude towards precedents, established procedures, and the rights of minorities that their leftist contemporaries showed in campus battles in the late 1960s and early 1970s. Because they are right, in their estimation, it doesn't matter how they get what they want. And let us face one thing right now: should this legislative coup take place with respect to nominations, there will be nothing to prevent the Republican leadership from repeating it with respect to a new tax cut, an extension and intensification of the Patriot Act, legislation to deprive gay partners of employee benefits, legislation allowing religious displays at public buildings, social security reform, or anything else. The minority protections offered by the Senate rules will have been illegally abolished. And because our major media outlets don't want to have to deal with the intellectual and professional consequences of recognizing the enormity of what is happening, they are ignoring it.
Republicans are now pointing out that filibusters have in the past been used to stop civil rights legislation, and from 1876 to 1957, they were. They were also used by antiwar Senators to stop the arming of merchant ships in early 1917--and by Republicans to stop President Johnson's nomination to the Supreme Court in 1968. But after the country had finally awoken to the need finally to grant full citizenship to black citizens in the 1950s and early 1960s, the filibuster against the great 1964 Civil Rights Act was defeated. As a matter of fact, in light of democratic principles the anti-civil rights filibusters were far less defensible than today's filibusters against the President's judicial nominees. The southern senators who filibustered against anti-lynching and civil rights legislation were elected by only a very partial electorate, in violation of the Constitution. Today, President Bush's judicial nominees and their principles are deeply repugnant to between 45 and 55% of the voting population. What Democratic Senators are trying to protect are the rights either of a very large minority, or of an actual majority that probably won the election of 2000--or certainly would have had they all properly cast their Florida votes--and was very narrowly beaten in 2004. The rules of the Senate clearly allow them to do so. The Republican response, here as in so many other areas, is to ignore the rules.