Dems New Found Love For the Constitution

Bill Kristol writes a well thought out piece in the Weekly Standard regarding the filibuster and its relationship to the Constitution:

SUDDENLY DEMOCRATS ARE WRAPPING THEMSELVES in the Constitution. Emphasizing his commitment to maintaining the filibuster as a way to stop President Bush's judicial nominees, Senate Democratic whip Richard Durbin said last week, "We believe it's a constitutional issue. . . . It's a matter of having faith in the Constitution." The trouble is, the filibuster is nowhere mentioned, or even implied, in the text of the Constitution.

Suddenly, too, European liberals are discovering the virtues of the Founding Fathers. On the same day that Durbin was confessing his faith in the Constitution, the editors of the Financial Times were urging Bill Frist to "cease and desist" his efforts to break the filibuster, imploring him to "reread the wisdom of the Federalist Papers." The trouble is, the filibuster is nowhere mentioned, or even implied, in the Federalist Papers.

What's really going on here, of course, is this: President Bush, having been elected and reelected, and with a Republican Senate majority, wants to appoint federal judges of a generally conservative and constitutionalist disposition. The Democrats very much want to block any change in the character of the federal judiciary--a branch of government they have increasingly come to cherish, as they have lost control of the others. It's a political struggle, not unlike others in American history, with both sides appealing to high principle and historical precedent.

But it happens to be the case that Republicans have the better argument with respect to the filibustering of judicial nominees. The systematic denial of up or down votes on judicial nominees is a new phenomenon. Republicans are right to say that it is the Democrats who have radically departed from customary practice.

Kristol goes on to explain the origins of the filibuster and how the decision to filibuster judicial nominations was a radical departure from the traditions of the Senate for 214 years. He then wraps it up this way:

This is why the filibuster has historically not been used on nominations. This is the constitutional logic underlying 200-plus years of American political practice. This is why as recently as 14 years ago the possibility of filibustering Clarence Thomas, for example, was not entertained even by a hostile Democratic Senate that was able to muster 48 votes against him. The American people seem to grasp this logic. In one recent poll, 82 percent said the president's nominees deserve an up or down vote on the Senate floor.

They are right. History and the Constitution are on their side, and on majority leader Bill Frist's side. When the Senate returns from its recess, the majority leader should move to enact a rule change that will break the Democratic filibuster on judicial nominees, confident in doing so that he is acting--the claims of Senator Durbin and the Financial Times to the contrary notwithstanding--in accord with historical precedent and constitutional principle.