The previous entry was to provide a historical background for some of the following conclusions about the current brew-up over the judicial appointments.
1) The statement “Filibustering judicial nominees is unprecendented” is patently false. The nomination of Abe Fortas to Chief Justice was filibustered, and in fact the nomination failed its cloture vote and was subsequently withdrawn. It was, in fact, quite possible that even had the confirmation vote been taken the nomination would have been rejected, but all we have for that is conjecture, because the vote was, in fact, never taken.
2) The statement “Filibustering judicial nominees is rarely done” is equally patently true. There are many other ways to table nominations, and all them have been used recently. Every Senator is given the courtesy of putting a “hold” on a nominee, stating the nominee is personally offensive to him, and that statement is honored. It’s an extreme case, and is used seldom, but has been used. Most often, the nomination is either never taken up in committee, or if taken up, never reported out from committe. This was the practice used, for example, by Jesse Helms to derail many of Bill Clinton’s judicial nominees.
3) The “Nuclear Option”/”Constitutional Option” is neither nuclear nor constitutional. It has been invoked on at least two occasions in the past by Robert Byrd (a Senator with a reputation for knowing parliamentary procedure rules so well that it was joked he was the “Robert” in “Robert’s Rules of Order”). The right to filibuster is not mentioned in the Constitution, nor is any prohibition to allowing it mentioned.
4) Protests about “changing the rules in the middle of the game” are also moot, because the rules have been changed many times in the past. Filibusters were created in 1806, limited in 1917, again in 1959, again in 1975. And, considering the Senate was established 200+ years ago, when are we not in the “middle of the game?”
Where do I stand? I can’t say I’m in favor of filibustering the appointment of these particular judges, but I will also say I am not in favor of confirming every nomination a president makes. The Senate has a duty to take into account the minority views in all its actions, and the President should, also. Every president has, at one point or another, nominated people that were not high on their list as far as politcal views go. So rather than try and ram everything down the Senate’s throat, a better solution would have been to back off on a couple of the nominees in favor of choices more amenable to the other side of the aisle. But it’s too late for that, now. Both sides have escalated this into a game of “Chicken,” and we know that kids never back down in that game. The result will be a steeper divide between the aisles, more anger and resentment, no matter what the outcome is, and even less civility in Civil Government.
So, we all lose.