As I’ve said before on this blog, Senate Democrats’ insistence on blocking President Bush’s appointment of the distinguished Texas Supreme Court Justice Priscilla R. Owen to a seat on the federal 5th Circuit Court of Appeals has been a running scandal for four years. (See my Stand Up for Priscilla Owen, May 11.)
Owen’s crime–as the liberal media characterize it–is that she’s supposed to be too “extreme” in her views about abortion. That’s Dem-speak for the fact that Owen believes in strong enforcement of parental-notification laws for teen-agers seeking abortions that the U.S. Supreme Court, even with a pro-choice majority of justices, have ruled constitutional under Roe vs. Wade. Needless to say, a majority of Americans support the notification laws, deeming it absurd that a 14-year-old needs a parent’s permission to have her ears pierced but if the Dems had their way would never even have to tell her parents about an abortion.
Now that Owen’s appointment and that of six other unconfirmed Bush nominees are likely to come up soon for Senate floor votes, the Dems, who don’t have the up-or-down votes to block Owen and the others, are, as we all know, threatening a massive filibuster. The Dems and their media pals claim that the filibuster is a time-honored Senate tradition that Senate Majority Leader Bill Frist wants to break via a rules change that would bar filibusters on judicial appointments.
Time-honored? Not exactly. In a column setting the record straight, the Washington Post’s Charles Krauthammer points out that in the 200-plus years that the Senate has been meeting there has been exactly one successful filibuster: on Lyndon Johnson’s appointment some 37 years ago of sitting Supreme Court Justice Abe Fortas to chief justice. And Fortas’s 1968 appointment was clouded by allegations of serious conflicts of interest and fiscal impropriety, and there were doubts that he had the votes for elevation even if there had been no filibuster. Otherwise, Krauthammer points out, the Senate has abided by an unwritten rule that filibusters should not be used to prevent otherwise qualified judicial appointees from taking their seats.
“In 2000, a small number of Republicans tried to filibuster two Clinton judicial nominees but were defeated in that attempt not only by Democrats but also by Republicans voting roughly 3 to 1 for cloture.
“There has certainly never been a successful filibuster in the case of a judicial nominee who clearly had the approval of a majority of the Senate. And there has surely never been a campaign like the one undertaken by the Democrats since 2001 to systematically deny judicial appointment by means of the filibuster.”
Krauthammer, by the way, is pro-choice on abortion himself (we at the IWF take no position on the issue). He continues:
“Two hundred years of tradition has been radically and unilaterally changed by the minority. Why? The reason is obvious. Democrats have not had a very good run recently in the popularly elected branches. Since choosing the wrong side of the culture wars of the 1960s, they have won only three of the past 10 presidential elections. A decade ago they lost control of the House for the first time in 40 years, and now have lost all the elected branches. They are in a panic that they will lose their one remaining ability to legislate — through the courts.
“And this they have done with great success, legislating by judicial fiat everything from abortion to gay marriage to religion in the public square. They want to maintain that commanding height of the culture and are not about to let something like presidential prerogative and two centuries of Senate history stand in their way.”
Now, says Krauthammer, the Senate Democrats are said to be trying to forestall Frist’s “nuclear option” by offering the Republicans a deal: They’ll allow four of the seven nominations to go through if the GOP will drop support for three (a group that undoubtedly includes Owen). Krauthammer says don’t take the deal, and I agree.
Until 1987, when the Dems decided to “bork” the appointment of the supremely qualified Robert Bork to the Supreme Court because they didn’t like his judicial philosophy, the appointment of federal judges took place in bipartisan equanimity. Since then, the process has become dangerously politicized, with even some Republicans getting into a tit-for-tat game of blocking the choices of democratically elected presidents. It is time for this sort of thing to stop. It’s Bill Frist, not the Democrats, who wants to restore and uphold time-honored tradition.