In his March 4 op-ed " 'Nuking' Free Speech," Sen. Robert Byrd (D-W.Va.) contended that eliminating the judicial filibuster would threaten debate and speech in the Senate.
The Constitution contemplates "Speech or Debate" in the Senate using those terms, yet it does not define how they will be conducted. To the contrary, it states, "Each House may determine the Rules of its Proceedings."
The House does not allow a filibuster, and no one ever has suggested that it acts unconstitutionally by limiting debate. The Senate is free to permit a filibuster, but it is not required to do so.
Obstructionists have used the filibuster to keep the Senate from voting on President Bush's nominees to the federal bench. The Senate rule requires a supermajority to move forward on such votes. But the Constitution requires a supermajority in only a handful of instances -- including ratification of treaties and overriding presidential vetoes. None of those instances relates to the confirmation of judges.
The judicial filibuster smacks of partisan politics. Revising the rule would not stifle dissent. Rather, it would channel dissent where it belongs: to a vote on the nominee.
JAY SEKULOW
Chief Counsel
American Center for Law and Justice
Washington
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