During President Bush's first term, 10 of his judicial nominees were filibustered by Senate Democrats. This month, when the 109th Congress convened, Senate Majority Leader Bill Frist finally declared war. Calling the filibusters an "unfortunate break with more than 200 years of Senate tradition," he made the Democrats an offer he hopes they can't refuse. "Right now," he said ominously, "we cannot be certain judicial filibusters will cease. So I reserve the right to propose changes to Senate Rule XXII and do not acquiesce to carrying over all the rules from the last Congress."
In other words, if Democrats don't play ball, Frist reserves the right to invoke the "nuclear option": a parliamentary ruling that eliminates judicial filibusters by fiat, without a vote of the Senate.
But the majority leader protests too much. Not only have filibusters been attempted against judicial nominees in the past, but Frist himself has even voted for one. In 2000, after Senate conservatives had held up Bill Clinton's nomination of Richard Paez to the U.S. Court of Appeals for the 9th Circuit for four years, Frist joined in an unsuccessful attempt to filibuster Paez -- a judge who was favored by a clear majority of the Senate and who won confirmation after the filibuster was broken by a vote of 59 to 39.
Still, Frist has a point. Senate Democrats have relied on filibusters to block judicial nominees far more often than have minority parties in previous congresses. But there's good reason for this: Republicans have steadily done away with every other Senate rule that allows minorities to object to judicial nominees -- rules that Republicans took full advantage of when they were the ones out of power.
Originally, after Republicans gained control of the Senate in the 1994 elections and Utah Sen. Orrin Hatch assumed control of the Judiciary Committee, the rule regarding judicial nominees was this: If a single senator from a nominee's home state objected to (or "blue-slipped") a nomination, it was dead. This rule made it easy for Republicans to obstruct Clinton's nominees.
But in 2001, when a Republican became president, Hatch suddenly reversed course and decided that it should take objections from both home-state senators to block a nominee. That made it harder for Democrats to obstruct George W. Bush's nominees.
In early 2003 Hatch went even further: Senatorial objections were merely advisory, he said. Even if both senators objected to a nomination, it could still go to the floor for a vote.
Finally, a few weeks later, yet another barrier was torn down: Hatch did away with "Rule IV," which states that at least one member of the minority has to agree in order to end discussion about a nomination and move it out of committee.
These rule changes aren't a direct explanation for every Democratic filibuster. In fact, some of the filibustered judges have been approved by both of their home-state senators, so they wouldn't have been blue-slipped in any case.
But Democratic frustration is still understandable. For better or worse, the Senate has long been dominated by rules that give minorities considerable power over the legislative and appointment process. The usual justification for this is that it forces compromise and curbs extremism.
When Democrats were in the majority, Republicans defended these traditional Senate rules and used them freely to block judges they had strong objections to. But when they became the majority party themselves, they gradually decided the rules should no longer be allowed to get in the way of unbridled majority power. It was only after Democrats were left with no other way to object to activist judges that they resorted to their last remaining option: the filibuster.
It's arguable, of course, that none of these rules made sense in the first place. Why should home-state senators be allowed to kill nominations to a federal court? Why should minorities be allowed to block committee reports at all?
The same question could also be asked about "anonymous holds," a tactic that allows a single senator to obstruct a nomination -- and one that was used extensively by Republicans during the Clinton administration.
There are powerful arguments that these arcane Senate rules are fundamentally undemocratic -- arguments to which I am sympathetic. But it's harder to see any good argument for allowing the rules to be cynically changed based solely on who's in power. If one blue slip is the rule when your opponents hold the presidency, then that should be the rule when your own party holds the presidency. Ditto for the rules on reporting nominees out of committee.
Given this history, fair-minded Republicans would be better advised to restore some of the rules they themselves once defended so fervently than to attempt to tear down the last one remaining. After all, no majority lasts forever. Legislators should keep in mind the question posed by Thomas More in "A Man for All Seasons" when his daughter's suitor says he would cut down every last law to get at the Devil. "And when the last law was down," More asks, "and the Devil turned round on you, where would you hide?"
Kevin Drum is a writer for Washington Monthly (www.washingtonmonthly.com).