Filibusters

Republican Gordon Smith from Oregon made the principled case against the filibuster on the floor of the Senate yesterday. Here are a few highlights.

When I ran for the Senate, I promised the people of Oregon that when it came to advising and consenting on judges, I would not have a litmus test, that I would respect the results of elections, that I would evaluate nominees for their academic achievement, their judicial temperament, for their personal integrity, and I would then vote on that basis without regard to a cultural litmus test.

I tried to demonstrate that when President Clinton was living at 1600 Pennsylvania Avenue, although I was not on the Judiciary Committee, I followed closely the deliberations of that committee under the leadership of Senator Hatch. There were a number of Democratic nominees that I specifically advocated for and tried very hard to help in their confirmation, and in the most part succeeded, even though their views were different from mine on a range of issues. I remember, in particular, the work of the committee on two controversial judges who were, by every measure, on the left wing of the spectrum politically, Judge Berzon and Judge Paez.

I remember Senator Hatch got them out of the committee, and I remembered my promise to the people of Oregon. One of our colleagues began to filibuster against proceeding in violation of what had been a gentleman's agreement of 200 years and more; that is, you don't filibuster judges when they clear the committee process and they come to a vote. So I voted in both instances to invoke cloture and then to confirm their ascension to the appellate court. I remember hearing a lot of disgruntlement by conservatives in Oregon who felt very strongly that they should be defeated.

But I do think elections have consequences. Presidents have rights and we have a role to play in advising and consenting. But I also feel that when we use the Senate rules to essentially overturn the right of a President and the result of an election, we do more than just violence to the executive branch of Government. We do serious injury to the judicial branch of Government. And we send a chilling effect into judges' chambers that they are going to then, in the future, be held to a standard that is so politicized that the best and brightest of liberal and conservative minds need no longer apply for service in the Federal judiciary.

Unlike Bill Frist, who voted to filibuster Judge Paez, Smith is being consistent.

As Senator Durbin, the assistant minority leader, would probably like to know, this is one Republican who does listen to him and I was listening to him last night when he spoke about Priscilla Owen. I heard his comments earlier when she had come up for confirmation in the 108th Congress, and among the many things held against her was her membership in the Federalist Society. The Federalist Society is something I have never belonged to. When I was in law school, I did not know about it. But it is an organization that believes apparently the judicial branch of Government should strictly construe the laws and be reluctant to get into political questions, to leave the democratic processes working, and to strictly interpret their judgments from the black letter of the law. I do, however, remember when I was in law school that one organization was very active in recruiting, and that was the American Civil Liberties Union. That is an organization that believes

it stands for the protection of the Bill of Rights and believes that those who should be on the court should expansively interpret those rights. As I understood the assistant Democratic leader, he was saying that Judge Owen's membership in the Federalist Society should disqualify her. Well, if that is now the standard--and, Mr. President, it will be the standard if the new Senate rule is 60 votes--then I promise my friends on the Democratic side that there will probably be more than 40 Senators on this side who in the future will hold ACLU membership against nominees.

... Mr. President, I come to this place believing that the brightest of conservative and liberal thinkers best serve American justice and the evolution of American law rather than having a standard that says if you are unwritten and unrevealed and unaffiliated, you have a chance, but if you are a Member of a political organization, if you are affiliated with the Heritage Institute or the Brookings Institute or you are a member of a religious faith, these standards will begin to erect barriers to service in public office. I think that is a very dangerous thing.

This would be problem with a supermajority requirement for judges.

Nevertheless, in former years, our colleagues made many modifications to the filibuster rule. It began in 1917. There was no limit to filibusters until then. The standard was then set at 67 votes to invoke cloture, end debate, and go to a vote. But still, this was not a standard applied to the Executive Calendar.

Further on, many changes have been made to the filibuster rights of a Senator. There are, in fact, 26 laws on our books today abrogating the right of a Senator to filibuster. For example, you cannot filibuster a Federal budget resolution. It was known as the Congressional Budget and Impoundment Control Act of 1974. The Budget Act of 1974 restricts debate on a budget resolution and all amendments thereto and debatable motions and appeals in connection therewith to not more than 50 hours. That is a very significant restriction on the right of a Senator to filibuster.

Another restriction is that you cannot filibuster a reconciliation bill. Like the budget amendment, a reconciliation bill cannot be filibustered on the Senate floor, so it can pass by a majority vote. So you cannot filibuster anything connected with a resolution or reconciliation, such as an amendment or a conference report.

I think the public would be surprised to know that at the end of a session, when the work of the Finance Committee and much of the work of the Appropriations Committee comes to this floor, usually in a big omnibus bill or reconciliation package, it passes by a majority vote because it cannot be filibustered. In fact, I suspect half of the work we end up doing here, because of decisions made in former days, is not the subject of filibuster, even though it is part of the legislative calendar.

Another instance: You cannot filibuster a resolution authorizing the use of force--the War Powers Resolution. You cannot filibuster international trade agreements, and that is called the Bipartisan Trade Promotion Authority. You cannot filibuster legislation under the Nuclear Waste Policy Act of 1982.

Time and again, our colleagues before have recognized that to move the business of the United States, there had to be some kind of limits. When I speak of the filibuster, I speak of it respectfully; I also understand its importance to slow down debate and to give Senators all the opportunity they need for debate. But I also understand that the country's business has to move forward. So colleagues, in former decades, have narrowed the right of the filibuster.

If this is accurate, and I have no reason to think that it is not, it addresses my "slippery slope" fears.

The Senate rules are not Scripture. They have been changed repeatedly throughout the history of this institution. We may now have to do that again. I had hoped that a compromise could be found.

Here is the place that I have some questions for Senator Smith. I wonder what he thinks of the way that Frist is planning on changing the rules of the Senate. As I understand it, it takes 67 votes to change those rules. Since he obviously would not have 67 votes, he instead will claim that judicial filibusters are unconstitutional. If 51 Senators agree, then the rule would be changed. Does Smith really believe that the filibuster of judicial nominees is unconstitutional? I know he thinks it is unwise, and that he thinks that it violates a "gentleman's agreement," but does he really think that it is unconstitutional?