An earlier version of this column erroneously reported that Sen. Orin Hatch said in 1994 that the filibuster tool "should" be used. Hatch described the filibuster as one of the few tools that "the minority has to protect itself and those the minority represents," but he did not say that it "should" be used to oppose a federal judge's nomination.
Attitudes Toward Filibuster Are About Power, Not Partisanship
Wednesday, May 4, 2005; 12:00 PM
Both sides of the debate on the judicial filibuster issue will insist they're fighting over facts. But in reality the fight is over what it always is in Washington -- power.
There is no consistent Democratic or Republican position on the Senate filibuster. There is only rhetoric. The only consistency in the debate seems to be coming from voters, who appear to favor a balance of power in Washington, according to a new Washington Post-ABC News poll.
Eleven years ago, when Republicans were still in the minority, Sen. Orin Hatch (R-Utah) described the filibuster as "one of the few tools that the minority has to protect itself and those the minority represents." And while Hatch didn't support a filibuster of any judicial nominee, he has voted to block at least one Democratic presidential appointment from receiving a straight up or down vote on the Seante floor.
In 2000, when Bill Clinton was still president, Sen. Charles Schumer (D-N.Y.) expressed frustration over Republican tactics, saying: "The basic issue of holding up judgeships is the issue before us; not the qualifications of judges, which we can always debate. The problem is it takes so long for us to debate those qualifications. It is an example of government not fulfilling its constitutional mandate because the President nominates, and we are charged with voting on the nominees."
With their roles now reversed, both sides are accusing the other of hypocrisy.
"These are rules that have been in place for over 200 years, and [the Republicans] just want to change them to benefit themselves," Laura Gross, a spokeswoman for the Democratic National Committee, said in an interview this week. "If they don't like the rules they change the rules. It's an abuse of power, and it's an abuse of trust."
Sean Rushton is a spokesman for the Committee for Justice, a conservative group formed at the behest of Karl Rove and Sen. Trent Lott (R-Miss.) three years ago to promote Bush's judicial nominations. Rushton sees it quite differently.
"[The Democrats] are not trying to extend the debate," he said. "They're just trying to change the confirmation standard from a bare majority of 51 to 60. What they really want is a minority veto power where any minority of 41 senators can essentially dictate what happens."
The side with the best public relations machine will likely win the rhetorical war. As that Washington Post poll suggests, at least for now, Democrats are winning. A strong majority of American adults frown on the potential elimination of the filibuster for judicial nominees.
"But by a 2-to-1 ratio, the public rejected easing Senate rules in a way that would make it harder for Democratic senators to prevent final action on Bush's nominees," Richard Morin and Dan Balz wrote last week of the Post poll. "Even many Republicans were reluctant to abandon current Senate confirmation procedures: Nearly half opposed any rule changes, joining eight in 10 Democrats and seven in 10 political independents, the poll found."
Even some eminent Republican Party stalwarts have urged Senate Majority Leader Bill Frist (Tenn.) to drop the fight.
"It is naive to think that what is done to the judicial filibuster will not later be done to its legislative counterpart," wrote former senators Malcolm Wallop (R-Wyo.) and James A. McClure (R-Idaho) in a Wall Street Journal op-ed recently. "The legislative filibuster . . . in the not-so-distant past was our only defense against the excesses of a bipartisan liberalism."