Monday, April 25, 2005

Should the Republicans have filibustered Clinton's nominees?

Tom writes this.....

So.. you're a Democrat and you know you're in that position that a floor vote will pass, and in order to block a nomination your only tool is the "within the rules" filibuster, what do you do? Do you do something meaningful and effectively block the nomination, or do you just let it go through with a weak "we tried"?

OK Tom, What if I was to tell you that the Repubs were in that situation and they DIDN'T use the filibuster.

Looking back do you think they should have block Clinton's nominees?

JUDICIAL NOMINATIONS -- (Senate - April 22, 2005)



Instead, let us abide by the tradition that says every nominee is entitled to an up-or-down vote. That way, when we get the Presidency, our President will have the same courtesy we are now extending to their President.

I remember very clearly when President Clinton sent some nominees to this body which members of my conference decided were left-wing whackos, if I might use that phrase. They, fortunately, did not use that phrase in public as it is being used now. And I do not think they should. But they felt these nominees were too extreme to be on the bench.

When it was clear we did not have the votes to prevent them from going on the bench, there were those in the conference who said: We have to filibuster. Let's use the filibuster to prevent them. We can muster 41 votes.

The chairman of the Senate Judiciary Committee, my colleague from Utah, ORRIN HATCH, and the then-majority leader, the Senator from Mississippi, TRENT LOTT, both pled with us: Don't do it. Don't start down that road. We have never done it before. And we shouldn't do it now.

And why not? Because, they said: After 2000, we are going to have the Presidency, and we want our President to have the same courtesy we are begging with you to extend to President Clinton. They carried the day. There was no Republican filibuster on the floor of any circuit court judge.

Now we find ourselves in a situation where the tradition has been changed, and the question is, will we now change the rule to reestablish the tradition? It is a legitimate debate. I have respect for those who hold positions on both sides.

I do make this comment. If the rule change does not go through, and the rule that now holds that says judicial nominees are fair game, I guarantee the next time the Democratic Party has a President who sends up a nominee that 41 Senators on the Republican side decide they do not like, the Republicans will abide by the rule that has changed the tradition, and they will filibuster the nominee.

Now, I have many of my colleagues who say: No, no, we would never do that. We honor the tradition, and we would go back to that tradition.

I do not believe them. I do not say they are lying to us. I think they believe what they are saying now. But I believe, in the heat of the battle that would come with a Republican minority in the Senate and a Democratic President, the Republicans, in the present atmosphere, would say: Let's use the filibuster. Let's give them a taste of their own medicine. The level of political dialogue would continue to go down. The level of personal destruction would continue to go up.

The other question I raise for speculation: Suppose nothing happens in this Congress, Democrats win the Presidency in 2008, the Republicans do use the filibuster to stop judges a Democratic President sends forward, but the Democrats are in control of the Senate. Will those who are standing here saying this is a disaster for the Senate give a pledge that they will not, when they are in the majority, suggest using 51 votes to get rid of the filibuster on judicial nominees?

I suggest they would be tempted to do the same thing the Republicans are trying to do now in order to take care of their Democratic President. Indeed, the record shows they have done that.

These quotations have already been given on the floor, but I want to repeat them in this context.

Senator Byrd, in 1979, said:

Now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past ..... [I]t is my belief--which has been supported by rulings of Vice Presidents of both parties and by votes of the Senate--in essence upholding the power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress.

Senator Byrd now disavows that position. And I respect that. Each one of us is entitled to change our mind. I have changed my mind. He is entitled to change his. Will he make a pledge he will not change it back when the Democrats are in the majority and say: ``We want to prevent filibusters of our President's judicial nominees''?

Senator Kennedy said in 1975:

By what logic can the Senate of 1917 or 1949 or 1959 bind the Senate of 1975? As Senator Walsh of Montana said during the Senate debate in 1917 on the enactment of the original rule XXII: ``A majority may adopt the rules in the first place. It is preposterous to assert that they may deny future majorities the right to change them.''

Senator Kennedy has obviously changed his mind. And I respect the Senator's right to change his mind. But I ask again, What assurance do we have he will not change his mind back if the Democrats get the majority and are seeking to protect a President of their own?

In 1995, there were nine Senators who voted in favor of eliminating all filibusters, not just judicial filibusters, all filibusters--nine Senators still serving, Senator Bingaman, Senator Boxer, Senator Feingold, Senator Harkin, Senator Kennedy, Senator Kerry, Senator Lautenberg, Senator Lieberman, and Senator Sarbanes. They voted in favor of eliminating all filibusters. They have now changed their minds. They have the right to change their minds. And I respect that. What indication do we have they will not change their minds back if we do not get this thing settled in this Congress?