A Washington, D.C.-based legal group launched a nationwide campaign yesterday to urge the U.S. Senate to put an end to the practice of filibustering, which has been used by Democrats to stonewall presidential judicial nominees.
The American Center for Law and Justice has provided two legal memoranda to Senate leadership and members of the Judiciary Committee urging them to change the Senate rule that requires 60 votes to cut-off a filibuster, the group said in a statement.
Filibusters led by Senate Democrats have blocked 10 of President Bush’s nominees to the bench who his opponents claimed were too “extreme” in their views to be confirmed.
“With the start of a new congressional session just weeks away, the time to encourage the Senate to change the rule putting an end to the use of judicial filibusters is now,” said Jay Sekulow, ACLJ chief counsel. “The Senate clearly has the authority to amend its own rules and take the action necessary to end the unconstitutional use of the judicial filibuster – a tactic designed to prevent up-or-down votes on President Bush’s judicial nominees.”
Continued Sekulow: “With the existing crisis in the federal judiciary – and a possible vacancy on the Supreme Court – the Senate must stand in support of the Constitution and put judicial filibusters off-limits. The American people understand the gravity of this situation, and in the weeks ahead we will hear from thousands who want to see an end to judicial filibusters.”
Under what the ACLJ calls the “New Congress Option,” the Senate has power to set its own procedural rules and at the beginning of the next congressional session – with a simple majority vote – can make the necessary changes needed to prohibit filibusters from being used against judicial nominees.
The second option the group says is available to the Senate is the “Constitutional Option,” which permits the Senate to adopt rules for its proceedings free from the constraints imposed under the rules held over from prior Congresses. With this option, the Senate can act at any time during its session and move to change the cloture rule regarding filibusters.
In the 109th Congress, Republicans will hold 55 seats, the Democrats 44 seats, with one independent. As such, Republicans need five Democratic votes to end a filibuster.
The ACLJ has launched a Petition to End Judicial Filibusters – a national petition campaign that the group says will reach hundreds of thousands of Americans. Sekulow said the organization will use a number of methods to get the word out – including direct mail, e-mail, the Internet, its weekly national television program and its daily radio program, which is heard on nearly 550 radio stations nationwide.
“The American people understand that the role of the Senate is to provide advice and consent for the president’s judicial nominees,” said Sekulow. “And that means permitting every nominee to get an up-or-down vote on the Senate floor. We’re confident the Senate will not turn a deaf ear to the many Americans who want to see the judicial filibuster removed.”
Sen. Bill Frist, R-Tenn., the Republican majority leader, has spoken out against the filibuster, pointing out no other minority in history has used the tool to block judicial nominees.
“This is unprecedented in over 200 years of Senate history,” Frist said in a speech to the Federalist Society last month. “Never before has a minority blocked a judicial nominee that has majority support for an up-or-down vote on the Senate floor. Never.
“Now, the minority says the filibuster is their only choice, because the majority controls both the White House and the Senate. But that fails the test of history. The same party controlled the White House and the Senate for 70 percent of the 20th century. No minority filibustered judicial nominees then.
“Howard Baker’s Republican minority didn’t filibuster Democrat Jimmy Carter’s nominees. Robert Byrd’s Democrat minority didn’t filibuster Republican Ronald Reagan’s nominees. Bob Dole’s Republican minority didn’t filibuster Democrat Bill Clinton’s nominees.
“There’s nothing specific in the formal rules of the Senate that restrained those minorities from filibustering. They simply used self-restraint. Those senators didn’t filibuster, because it wasn’t something senators did. They understood the Senate’s role in the appointments process. And they heeded the intent and deferred to the greater wisdom of the framers of the Constitution.”
Whether or not Frist and his colleagues take the action the ACLJ is advocating, which would end a Senate tradition going back decades, remains to be seen.
Jim Henderson, senior counsel at ACLJ, admitted such a move would require extraordinary boldness on the part of the Republicans.
“It requires steely nerve,” he told WorldNetDaily, “and a commitment to predominance. You’d be a fool to change this rule if you thought in two years the Democrats would be in control. …
“It’s a question of will party discipline be applied to the folks out on the edges,” or Northeastern Republican senators who are possible risks to leave the party, Henderson said.
He stressed the Senate has the power to change the rule by a simple majority, so he likens the Republican leadership to “a man who puts handcuffs on himself and has the key in his hand.”
“It really is as simply as it seems,” he said.
Henderson says the filibuster has a “magical spell” attached to it that needs to be broken once and for all.