Idaho Examiner - Sen. Larry Craig News Releases

Friday, April 22, 2005

Constitutional Option: Restoring Majority Rule

by Senator Larry Craig

Like most Idahoans, I was a little curious the first time I heard some of my colleagues debating whether the Senate should exercise “the nuclear option.” This turned out to be a euphemism to describe a possible change of Senate parliamentary rules with regard to federal judicial nominations.

The issue is whether 41 percent of the U.S. Senate should unilaterally usurp power in a way that would prevent the President of the United States from doing a major part of the job the majority of the American people elected him to do.

The U.S. Constitution specifically makes it a principal responsibility of the President to appoint persons to judgeships and executive agency positions. The Constitution gives the legislative power – the responsibility to write laws – to the Congress. It provides for the President to have a very limited role in the legislative process – to sign or veto bills – and allows the Congress to have only a limited role in the appointment process, through the Senate providing its advice and consent on presidential nominees.

From 1789 until 2002 – more than 200 years – the doctrine of advise and consent regarding federal judicial nominees was adhered to in the Senate, and it served the nation well. Now, a minority of Senators is pushing a new rule that would thwart the majority and set up religious and ideological litmus tests for prospective federal judges.

Instead of impartial arbiters, Democratic Senators insist on stacking the federal bench with only judges that match their ideological persuasion. At this point, most folks naturally ask, how can they expect to do that, if they’re in the minority?

Under the rules of the Senate, debate on a legislative matter usually cannot be limited without the agreement of at least 60 out of 100 Senators – a “supermajority”. If fewer than 60 Senators vote to close debate, then it could stretch on for days or weeks – or forever, which means the minority has launched a successful “filibuster” preventing the Senate from ever taking a final vote on the matter at hand.

In an unprecedented break with more than 200 years of Senate procedure, Senate Democrats, in almost complete partisan lockstep, have spent months, in some cases years, filibustering several federal judges nominated by President Bush. They are threatening to filibuster several more. In doing so, Senate Democrats are effectively attempting to amend the Constitution without going through the state legislatures and the democratic process, and with the backing of as little as 41 percent of one-half of one of the three branches of the government.

The Constitution specifically describes situations where a “supermajority” of lawmakers is required for passage. Confirmation of federal judges is not one of them.

By refusing to allow a confirmation vote on an ever-growing number of President Bush’s nominees, liberal Democrats in the Senate have created a Constitutional crisis. Twenty nominees, including some with bipartisan support, were “left hanging” at the end of 2004 legislative session. So much for the principle of diversity on the federal bench!

In truth, the first nuclear strike was the launch of the Senate Democrats’ judicial filibusters. In response to this crisis, Senate Republicans, including myself and Majority Leader Bill Frist, have labored mightily to reach an agreement that would allow a full and fair debate, but with a final, up-or-down vote at the end of that debate. Unfortunately, our every effort has been rejected. Now, we have begun to consider applying the Constitution and the rules of the Senate to overcome filibusters of federal judicial nominees. This has been called the “nuclear option.” In reality, it would be the simple restoration of majority rule.

Here’s how the Senate could restore majority rule on its confirmation of judicial appointments. If a nominee is being filibustered, a Senator could raise a Constitutional point of order to determine whether legislative filibuster rules also apply to the President’s judicial nominees. A vote would be held that would only require a simple majority – 51 Senators – to settle the issue.

Most Senators would prefer not to pursue this course of action. It is called the nuclear option because, once you’ve used it, there’s no going back. However, there may be no other way to restore majority rule in the Senate and respect the will of the 59 million people – again, the majority – who voted to re-elect President Bush in November.

In the past, the filibuster was used only sparingly. Unfortunately, over the last four years, it has become a partisan tool to prevent President Bush and a popularly-elected majority in the Senate from doing the job they were elected to do. That doesn’t sound like democracy to me.


  • At 12:26 PM, Blogger Jesse said…

    Lets make the Democrats preform the "filibuster". All they have done is threaten. Make them do it and do not allow the Senate adjourn until they have finished. I for one would love to see Ted Kennedy with out a drink in his hand trying to talk at three in the morning.


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