One of the main arguments used by Bill Frist and other conservatives about employing the nuclear option to eliminate the filibuster of judicial nominees is that the Democratic use of the filibuster to oppose judicial nominations is unprecedented. He has called the use of the filibuster to oppose judicial nominees
dangerous and radical. On his own website, there is a text of a speech he gave to the Federalist Society on November 11, 2004,
where he said:
The Senate now faces a choice: either we accept a new and destructive practice, or we act to restore constitutional balance.
Since it will probably be scrubbed from his website shortly, you can also
find this speech at several other websites.
Frist isn't the only conservative making this claim. Here is the Traditional Values Coalition from last month:
C. Boyden Gray, Chairman of the Committee for Justice, believes that the liberal's use of the filibuster to block judges violates the "constitutional principle of Separation of Powers. The Constitution grants the Executive primary power over judicial appointments while granting the Senate, as a body--not partisan factions within it--a check via majority vote. By altering that standard, the Senate Democrats are, in effect, arrogating power to the Senate from the Executive."
Gray has published a memo to journalists on the dangerous tactic being used by Senate liberals to usurp power from the Executive branch. In it, he notes that until 1949 it was not even possible to filibuster a nomination. In that year, Rule 22 was expanded to include any "matter" under consideration in the Senate.
According to Gray, the liberal filibuster of judicial nominees "is absolutely unprecedented. Its history is two years old."
This is, simply put, wrong. On March 8, 2000, thirteen Senators, all of whom were Republicans, attempted to filibuster Marsha Berzon for U.S. Circuit judge. You can
read the roll call vote right here. Eight of these Seantors are currently in the United States Senate: Allard (CO), Brownback (KS), Bunning (KY), Craig (ID), DeWine (OH), Enzi (WY), Inhofe (OK) and Shelby (AL). None of these eight have expressed opposition to the elimination of judicial filibusters, a practice they themselves once tried to engage in. Later that same day, those same thirteen Senators, in addition to Senator Bill Frist, attempted to filibuster the nomination of Richard Paez to US Circuit Judge. You can
read the roll call vote on that one here.
So why are Senators who previously participated in the attempted filibuster of judicial nominees now trying to end the filibuster of judicial nominees while calling such a practice unprecedented, radical and unconstitutional? Orin Hatch wrote about the real conservative complaint in January (emphasis mine):
These are the first filibusters in American history to defeat majority supported judicial nominations. Before the 108th Congress, 13 of the 14 judicial nominations on which the Senate took a cloture vote were confirmed.
Conservatives know that thee is a history of attempting to block judicial nominations through the use of the filibuster. They know this because some of them participated in such attempts. Bill Frist participated in one such attempt. What conservatives are really whining about is that the Democratic attempts at filibustering nominees have been successful, while the recent Republican attempts have failed. At Hatch points out, the only thing new about the Democratic efforts at the filibuster is that they have succeed in blocking confirmations. The other attempts tried to do that; they just failed.
For Republicans, the real principle behind the attempt to destroy the filibuster for judicial nominees has nothing to do with the Constitution, it only has to do with winning and losing. It is, in short, a power grab to prevent future defeats. It is a right wing power grab with not other motive except victory, a victory they will do anything to achieve, including call all those who oppose them godless and prejudiced against people of faith.
