Shameless Opportunism of the Senate Democrats

John Fund chimes in on the judicial filibuster issue and points out the shameless opportunism of the key Dem Senators:

Flip-Floppy Democrats and the Judicial Filibuster

With a Supreme Court vacancy likely to open up in June with the expected retirement of Chief Justice William Rehnquist, Republicans are dithering on whether or not to end filibusters of judicial nominations. They should know that if they fail to use parliamentary procedure to restrict future filibusters only to actual legislation, they are inviting months of Senate gridlock this summer over any Bush Supreme Court nominee.

"There's nothing in the Constitution that says that there has to be 51 votes for that judge," claims New York Senator Chuck Schumer, the mastermind behind the Democratic filibuster strategy that has so far blocked 10 of Mr. Bush's appellate court nominees. He sang a different tune back in 2000, when he wanted to dislodge some Clinton nominees from the Judiciary Committee before the November election. "I also plead with my colleagues to move judges with alacrity -- vote them up or down," Mr. Schumer said on the Senate floor. "But this delay makes a mockery of the Constitution, makes a mockery of the fact that we are here working, and makes a mockery of the lives of very sincere people who have put themselves forward to be judges and then they hang out there in limbo."

Mr. Schumer had a legitimate point back then about Republican obstructionism, which makes his current turnaround on the issue shamelessly opportunistic. He should know that the Constitution's Advice and Consent clause clearly states that a simple majority of Senators can confirm nominees, and a Supreme Court decision in 1892 upheld that interpretation. That standard is well known and is the only logical answer to why Democrats did not filibuster Justice Clarence Thomas' nomination in 1991.

Back then, Senator Patrick Leahy of Vermont, now the ranking Democrat on the Senate Judiciary Committee, flatly rejected calls by outside liberal groups for a filibuster of the Thomas nomination. "The president and the nominee and all Americans deserve an up or down vote" on the nomination, Leahy said. "I am totally opposed to a filibuster."

Mr. Leahy was joined in his opposition by Texas Senator Lloyd Bentsen, who had been the Democratic vice presidential nominee in 1988. In decrying a possible filibuster of Mr. Thomas, he wrote: "As a matter of high priority, the Senate should change its rules so that we can act responsibly, more rapidly and with more certainty on the major issues our nation faces."

Today, rather than face down the more extreme interest groups urging filibusters of judicial nominations, Senate Democrats seem to have abdicated their responsibilities to them. On the Hugh Hewitt radio program both Nan Aron, president of the Alliance for Justice, and Ralph Neas, executive director of People for the American Way, pledged this week to filibuster any conservative Bush nominee to the high court. When asked if he would oppose Mike McConnell, a widely respected judge on the 10th Circuit Court of Appeals who has criticized the Supreme Court's Bush v. Gore decision in 2000, Mr. Neas noted: "Mike was a colleague of mine at the University of Chicago Law School. Lovely individual, but truly extreme on a wide range of issues."

Former Democratic Senator Zell Miller of Georgia told me last year that his former colleagues are incapable of saying no to the liberal groups that want to block any Bush court nominee. But he also said that Republicans are foolish if they believe Democrats will shut down the Senate if filibusters on judicial nominations are ruled out of order. "Senators need to get business done and folks back home will demand they do," he said. "A work stoppage wouldn't last long."