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Editorial: Senate shows its worst side in filibuster

Wednesday, March 19, 2003

In this day of partisan politics, when any issue can be used to stake out a political position, there continue to be disappointments as well as a few surprises.

The most apparent disappointment is the U.S. Senate's handling of federal judicial nominations. Disruptive stalling tactics are not new, and both Republicans and Democrats have used this ploy on a number of occasions.

Essentially, playing politics trumps attending to the government's business when elected officials choose to delay -- and, occasionally, to thwart -- judicial nominations. The Constitution calls for the president to nominate qualified individuals to serve as federal judges, and it gives the Senate the right to question the nominees and the duty to confirm them.

No one is questioning this process. It makes sense for the Senate to provide the checks and balances against the unlikely event that any president would choose to put someone on the bench who is unfit. But if that were to occur -- and there certainly have been questionable appointments from time to time -- the proper course of action would be to reject the nominee in a vote on the floor of the Senate.

But this is where it gets sticky. If the U.S. Senate were to vote today on President Bush's nomination to make Miguel Estrada the first Hispanic to sit on the U.S. Court of Appeals for the District of Columbia, there would be enough votes for confirmation.

However, the Senate split between Republicans and Democrats remains so close that a GOP majority can often be achieved only by having the vice president exercise his tie-breaking authority as president of the Senate.

So the Democrats -- as Republicans have done in the past -- are utilizing other methods that rely on the complex rules legislative bodies impose on themselves. In the case of the Estrada nomination, Democrats are filibustering to prevent a floor vote. While the floor vote requires only a simple majority, ending a filibuster requires a super-majority of 60 votes. So far, Republicans have been able to muster only 55 votes to end the filibuster.

President Bush has called for the Senate to change its rules so judicial nominations can get be processed in a timely way by the Senate. Some senators over the years have suggested similar changes. But changing the Senate's rules is no easy task. Through more than two centuries of parliamentary maneuvering, such rules have become a labyrinth that at any time is seen to give certain advantages to both sides of any issue.

At the heart of the Democratic balk on the Estrada nomination, however, is a fallacy. The Democratic leadership says Estrada hasn't answered questions. In fact, the Democrats have passed up opportunities to ask those questions. Now the Democrats want the White House to release memorandums Estrada wrote while working in the solicitor general's office during the Clinton administration. The White House says these are privileged documents.

In the end, those who hide behind rules to avoid taking a clear position for or against judicial nominees are doing the country no favors.


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