Monday, May 02, 2005
On this day:

Give Nominees a Vote

New York Times: Up, Down or Out By BOB DOLE
By creating a new threshold for the confirmation of judicial nominees, the Democratic minority has abandoned the tradition of mutual self-restraint that has long allowed the Senate to function as an institution. This tradition has a bipartisan pedigree. When I was the Senate Republican leader, President Bill Clinton nominated two judges to the federal bench - H. Lee Sarokin and Rosemary Barkett - whose records, especially in criminal law, were particularly troubling to me and my Republican colleagues. Despite my misgivings, both received an up-or-down vote on the Senate floor and were confirmed. In fact, joined by 32 other Republicans, I voted to end debate on the nomination of Judge Sarokin. Then, in the very next roll call, I exercised my constitutional duty to offer "advice and consent" by voting against his nomination. When I was a leader in the Senate, a judicial filibuster was not part of my procedural playbook. Asking a senator to filibuster a judicial nomination was considered an abrogation of some 200 years of Senate tradition. To be fair, the Democrats have previously refrained from resorting to the filibuster even when confronted with controversial judicial nominees like Robert Bork and Clarence Thomas. Although these men were treated poorly, they were at least given the courtesy of an up-or-down vote on the Senate floor. At the time, filibustering their nominations was not considered a legitimate option by my Democratic colleagues - if it had been, Justice Thomas might not be on the Supreme Court today, since his nomination was approved with only 52 votes, eight short of the 60 votes needed to close debate. That's why the current obstruction effort of the Democratic leadership is so extraordinary. President Bush has the lowest appellate-court confirmation rate of any modern president. Each of the 10 filibuster victims has been rated "qualified" or "well qualified" by the American Bar Association. Each has the support of a majority in the Senate. And each would now be serving on the federal bench if his or her nomination were subject to the traditional majority-vote standard. This 60-vote standard for judicial nominees has the effect of arrogating power from the president to the Senate. Future presidents must now ask themselves whether their judicial nominees can secure the supermajority needed to break a potential filibuster. Political considerations will now become even more central to the judicial selection process. Is this what the framers intended?