Full of It on Filibusters


As the World's Greatest Deliberative Body®, a.k.a the U.S. Senate and the least inspiring bunch of federal employees this side of USDA meat inspectors, gets set to trigger the "nuclear option" on judicial filibusters, the Wash Times' chief political correspondent, Donald Lambro, files this partisan but fascinatin' report on what a tub of ideological lard Teddy Kennedy is on the matter of judicial filibusters:

Mr. Kennedy last week defended the use of the filibuster to block Mr. Bush's nominees, telling CBS' Face the Nation that "you're talking about an institution, established by the Founding Fathers, whose rules have guided us for more than 200 years."

But Mr. Kennedy had a different view in the late 1990s when he and 18 other Democrats sought to abolish the filibuster.

The rules-change proposal at that time, offered by Sens. Tom Harkin of Iowa and Joe Lieberman of Connecticut, would have amended the Senate rules to allow a simple majority to end any filibuster against a bill or a presidential nomination.

Taking the same position now being expressed by Mr. Frist, Mr. Kennedy said on the Senate floor on Feb. 3, 1998: "We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don't like them, vote against them. But give them a vote."

That's good reporting, though one wonders: Where were the Senate Republicans on the matter? I suspect there's more than a few GOP pie-in-the-face quotes floating out there on Nexis. Whole thing here.

Elsewhere in the today's Times, Lambro filed this equally interesting (and partisan) op-ed column:

Mr. Bush nominated 52 well-qualified people to the appellate courts in his first term. Thirty-five were confirmed, but 17 were not. [Writing in Human Events, Washington powerbroker and former chief counsel to the first President Bush] C. Boyden Gray cites American Enterprise Institute scholar John Lott Jr. that the confirmation rate [of Bush appellate nominees]–67 percent– is the lowest in modern times.

But how did President Clinton's nominees fare under the Republican Senate? Democratic leaders say they are just doing what Republicans did to them in 1990s. In fact, "Clinton's eight-year appellate confirmation rate was 74 percent, in addition to getting two liberals confirmed to the Supreme Court," says Mr. Gray. Mr. Clinton got 377 judicial nominees confirmed. A pretty good record in a Republican-run Senate.

Lambro's op-ed here.

Hmm. The percentages are pretty close, especially given the small sample of the Bush confirmations (if three more Bush picks had been confirmed, he'd be even with Clinton). Then there's the question of Clinton's eight-year span vs. Bush's first four. What was Clinton's first term rate? (Disclosure: Gray is a trustee of the Reason Foundation, the 501(c)3 nonprofit that publishes Reason and Reason Online; I haven't read his Human Events piece.)

Lambro is on firmer ground when he notes that it's relatively rare not to have up-or-down votes over judicial nominees. He notes, for instance, that Clarence Thomas's Supreme Court nomination went to a full vote of the Senate and he quotes "liberal constitutional scholar Mark Tushnet" saying, "The Democrats' filibuster is…a repudiation of a settled pre-constitutional understanding."

That sounds about right. The filibuster rules are not a matter of constitutional import, which might explain why they've been changed over time.

I'd prefer they stay in place, for nominees and other issues, if only for the reason that my colleague Jacob Sullum has suggested: They slow down the pace of legislatin' and, hence, spending and buttinskyism of the non-financial kind.