Democrats' stance on filibuster hypocritical

Bill Frist '74 recently proposed to end the Democrats' obstruction of judicial confirmation procedures by changing the Senate rules that allow a mere 40 senators to block a confirmation vote indefinitely. In doing so, Frist is not trying to stifle debate or force senators to confirm his favorite nominees. Rather, he argues that all nominees deserve the courtesy of an up-or-down vote. For this, he has received much criticism. The "Frist Center Filibuster" has done well to focus our attention on an important issue, but our attention must go beyond reading Aesop's fables or Shakespeare's plays in protest. We need to have an honest debate over the merits of the arguments advanced by both sides.

Unfortunately, the Frist filibuster has provided more hype than reasoned argument. The protest's official website claims that Frist's proposal "would end the constitutional role of the Senate as a deliberative body that respects minority views." This is sensationalist hyperbole. No one is trying to deny senators their right to criticize the merits of judicial nominees. In fact, Frist's proposal allows for 100 hours of debate over each nominee before requiring a vote. The Democrats' filibuster is not a principled plea for honest debate but rather a political maneuver, prompted by a raw desire to exert their diminishing political influence. Because they do not have enough voter support to choose the judges they want, Democrats are desperately resorting to the filibuster.

Many of Frist's opponents speak as if he is trying to deny them some constitutional or customary right, but in fact both the Constitution and tradition support his position. The filibuster is never even implied in the Constitution, and using it systematically to deny nominees an up-or-down vote is totally unprecedented. According to the Constitution, the power to appoint judges originates with the President, subject only to the "advice and consent" of the passive Senate.

In the Senate's active lawmaking role, it is the President who must accept or reject. When Congress is in session, the President has only ten days to sign or veto a piece of legislation; he may not filibuster to undermine the Senate's constitutional role, and neither should the Senate avoid its duty to vote on the President's nominations. In the legislative context, the filibuster makes good sense. The Senate ought to be able to determine procedure in what are primarily its own affairs, and accordingly Frist's proposal preserves current rules for legislative filibusters. Judicial filibustering, however, is contrary to the logic of the Constitution's separation of powers, for the power to appoint non-elected federal officials fundamentally belongs to the executive branch of government.

One could say much about the dramatic change in sentiment among Senate Democrats since the 1990s, when they were fighting for their judicial nominees. In 1998, Senator Patrick Leahy said, "I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported." Senators Kennedy, Harkin, Reid and others have made similar statements that reveal blatant hypocrisy in their filibuster. One might also point out that Americans overwhelmingly support the right of nominees to an up-or-down vote. But popular opinion and political hypocrisy should only be secondary considerations here. Instead, we should recognize the grave impropriety of senators using the filibuster to avoid their obligation to vote on judicial nominees. Senator Frist should be praised for fighting the emergence of a dangerous precedent. Michael Kenneally is a philosophy major from New York, N.Y. He can be reached at mkenneal@princeton.edu.