THE DEMOCRATS have gone where no party ever has: It has become the party whose senators routinely filibuster nominations to the circuit courts of appeals.
The obvious intention is to make it harder to confirm a nominee. Indeed, where a simple majority always has sufficed for Senate approval, 60 votes now are necessary, since that is the number of votes needed to break a filibuster and permit an up-or-down vote.
Senate Democrats have filibustered three circuit court nominees and promise to block votes on several more. But not until last week did a filibustered nominee finally give up when Miguel Estrada, designated for the District of Columbia Circuit, asked President Bush to withdraw his name.
The Democrats want more results just like that. They want the president to see that he must compromise on judicial philosophy and nominate judges more to their liking. He isn't going to do that, nor should he. Senate Republicans could change Senate rules so as to exempt judicial nominations from the filibuster, but they so far have lacked the courage to do that. The prospect for the next year, then, is that the 44 filibustering Democrats in the Senate (four Democrats oppose using the filibuster) will continue to deny votes to selected circuit court nominees. But as they do that, they will be doing damage to their party's long-term interests. One is retaking the Senate in 2004. In the 2002 elections, Bush made judges an issue as he campaigned for Republican candidates in key states. He repeatedly hammered Democrats--then in charge of the Senate--for their slow and unfair processing of his circuit court nominees. The Judiciary Committee had held up nominees, actually rejecting two of them (5th Circuit nominees Charles Pickering and Priscilla Owen). All of those nominees would have been confirmed, albeit narrowly, had floor votes been held. Republicans say the judges issue helped rally their base last fall and may have pulled in voters from the political middle. To what extent it might have done those things isn't really known. But we do know the election results: Democrats lost key states and their Senate majority. It isn't hard to imagine the Republican argument in 2004--that Senate Democrats, though now in the minority, have become even more obstructionist and that more Republicans must be elected if the president's judges are to be confirmed. That could be a strong argument. Meanwhile, the Democrats face another problem, which would arise if a Democrat is elected president, and if Democrats--in 2004 or 2006--were to regain control of the Senate. Why would anyone think a Republican minority, remembering the precedent set by the Democratic minority during the 108th Senate, wouldn't be tempted to filibuster a Democratic president's circuit court nominees? And who in the Democratic party would have the credibility to argue against filibustering judges? Not John Edwards or Joe Lieberman or John Kerry or Bob Graham, all of them senators who filibuster judges--and all of them presidential candidates. You might think one of them might be able to think the issue through and see that filibustering judges is a bad idea. Instead, they celebrate their filibusters. The first political party ever to filibuster circuit court nominees shows no signs of seeing the error of its way.
Terry Eastland is publisher of The Weekly Standard. This column originally appeared in the Dallas Morning News.
© 2003 The Weekly Standard. All rights reserved. Used with permission.