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December 20, 2004
Novak Weighs In On Frist And The Nuclear Option

Robert Novak lined up behind Senate majority leader Bill Frist and the so-called nuclear option of a rule change to eliminate filibusters on judicial nominations. Novak points out that Democratic Senator Robert Byrd created four precedents for such rule changes when he ran the Senate, and that nothing short of a rule change will stop the planned filibusters from continuing:

Ever since Frist publicly embraced the nuclear option, he has been accused of abusing the Senate's cherished tradition of extended debate. In truth, during six years as majority leader, Democrat Robert C. Byrd four times detonated the nuclear option to rewrite Senate rules.

Thus, Frist would set no precedent, would not contradict past Republican behavior and would not strip the GOP of protection as a future Senate minority. The question is whether Republican senators will flinch from the only maneuver open to confirm Bush's judges.

The unprecedented Democratic plan to filibuster judicial nominations that do not meet liberal specifications has exceeded all expectations. None of 10 filibustered Bush appellate court nominees has been confirmed, and another six are all designated filibuster victims. This is intended to have a chilling effect on Bush in filling Supreme Court vacancies.

All 16 of these nominees are dead under present procedures. Even with the net gain of four Republican senators in this year's elections, Frist falls short of the 60 votes needed to cut off debate.

Let's get past the arcane and esoteric arguments on precedent and the childish debate of who did what to whom first and worst. The Senate's duty to the American public is to provide advise and consent to the Executive on its Constitutional duty to fill these posts. No one argues with the Senate's ability to reject nominees by a majority vote, either in committee or by the full Senate. If a president cannot get a majority to support a judicial nominee at any level, then the candidate should not have been nominated in the first place.

However, the Democrats have essentially hijacked the Constitution and the nomination process by applying filibusters to these nominations, and that is quite unprecedented. I agree with Novak that forcing a full filibuster won't work because it places all of the burden on Senate Republicans to maintain a large presence in the chamber 24/7. But Republicans need to end the Democrats' attempt to arrogate the judicial nomination process from the Executive to the minority party in the Senate. Filibusters may have their place in the legislative process -- and I'd argue about that, too -- but not in an advice-and-consent role.

Frist and the White House need to couch this fight in terms of protecting the Constitution and not in terms of majoritarian rule, which allows the weak-kneed to object to protect the GOP when it becomes a minority in the Senate. Using filibusters to prevent nominees to come to a vote attacks the Constitution no matter which party has the majority -- and everyone knows it. If Frist and McConnell cannot muster the courage to engage this fight, then they should step aside for two who can.

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Posted by Ed Morrissey at December 20, 2004 12:10 PM

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» The "Nuclear" Option from The Colossus
Captain Ed at Captain's Quarters has it right; the rule of the filibuster must be changed when it comes to judicial appointments. My feeling is that the filibuster is far less important than the Senate's constitutional obligation to act on the Presiden... [Read More]

Tracked on December 20, 2004 3:20 PM

» The Spector Debate from CognoCentric
The Captain weighs in on filibusters. My two cents worth: Let's return to the old filibuster rules (see also: Mr. Smith Goes to Washington). [Read More]

Tracked on December 20, 2004 3:49 PM

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