Nuclear Whiner - Bill Frist on Democratic Dissent
By Herman Schwartz
The American Prospect

Bill Frist calls Democratic dissent on some judicial nominees “unprecedented.” Look back a few years and you’ll see that’s simply not true.

As part of their drive to overturn the welfare, regulatory, and social advances of the last 75 years, Republicans have sought to tilt the federal courts far to the right. As Ronald Reagan’s Attorney General Edwin Meese understood, stacking the courts could “institutionalize the Reagan revolution so that it can’t be set aside no matter what happens in future presidential elections.” If current Majority Leader Bill Frist’s threats are to believed, the Republicans are about to endow themselves with an unprecedented power to complete this quest, removing via the “nuclear option” the Democratic minority’s last resort in moderating their extremist judicial selections: the filibuster.

The Framers of the Constitution knew that they were creating a powerful, independent institution — one tasked with checking the other two branches. To ensure that independence, the Framers designed a system that allows the president to nominate a judge, but subjects the nomination to approval by the Senate. With judges allowed life tenure and near-immunity from impeachment, the decision to confirm a federal judge is effectively irreversible and very long lasting. Today the average tenure of a federal judge is approximately 24 years, or six presidential terms; judges appointed in their 30s or 40s can serve for much longer. Mistakes or misjudgments about a nominee’s fitness cannot be remedied; there can be no second thoughts.

Few, if any other Senate actions have this irreversibility. Legislation can be amended or repealed. A nonjudicial appointee will leave office sooner or later, and usually when the president leaves. And if a judicial nominee is not confirmed, there are more than enough other aspirants. Only a judicial confirmation has this unique combination of power and untouchable longevity.

It is thus essential that judicial nominations command widespread approval, and this is why the Senate is given what Senator Robert Griffin, leader of the 1968 filibuster against Abe Fortas’ nomination to be chief justice, called “the other half” of the power to appoint judges.

Senate rules and practices since the early 1800s have confirmed the institution’s counter-majoritarianism. Both Republicans and Democrats have invoked this protection, especially when the other party controlled both the presidency and the Senate. In such circumstances, protection for the minority with respect to judicial nominations becomes especially important, for senators rarely oppose their own party’s judicial nominations.

Traditionally, the filibuster has not been the only weapon in an opposition party’s arsenal. There are other, less visible ways whereby the Senate’s rules and traditions empower individual senators to block judicial and other nominations. Between 1996 and 2000, Republicans in control of the Senate developed these techniques to a high art.

Prior to 1996, when the Senate majority and the president were from opposing parties, senators usually deferred to the president with respect to lower-court judicial nominations. With the notable exceptions of the 1968 Fortas nomination and a failed Republican filibuster of H. Lee Sarokin in 1994, neither party filibustered the other’s judicial nominations, and virtually all nominees received a hearing unless they were sent up after the presidential nominating conventions.

All this changed in 1996. Rather than openly challenge President Clinton’s nominees on the floor, Republicans decided to deny them Senate Judiciary Committee hearings. Between 1996 and 2000, 20 of Bill Clinton’s appeals-court nominees were denied hearings, including Elena Kagan, now dean of the Harvard Law School, and many other women and minorities. In 1999, Judiciary Chairman Orrin Hatch refused to hold hearings for almost six months on any of 16 circuit-court and 31 district-court nominations Clinton had sent up.

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