Senator Frist Doesn't Have the Anti-Filibuster Votes on Judges Yet

The great political debate of the day is not about Social Security or the lack of ethics of Congressman Tom DeLay. It is about whether the Republican Party in the US Senate is going to change Senate rules that have existed for decades simply to get 10 judges they want confirmed to pass inspection. The Democrats have stuck together in what looks like party unity (although among Democrats one is never sure, herd of cats that they are), meaning a filibuster could hold off these confirmations. Senate Leader Bill Frist (R-TN) has threatened the change, and his Democratic counterpart Harry Reid (D-NV) has said if the change is made, he'll use every parliamentary means necessary to halt the Senate's business. This so-called "nuclear option" may come to pass later this year, but right now, it looks like Senator Frist doesn't have the votes to make it happen.

A lot of recent discussion and commentary has gone into the whys and wherefores of filibusters and cloture, and there is little to add. In essence, the US Senate requires a 3/5 super majority to end debate, and the GOP has decided it needs to undo the rule to get the desired result. There is nothing sacred about the filibuster, and indeed, it has usually been used by reactionary members to thwart democratic desires. And in an uncharitable mood, one could argue that that might just be what the Democrats have become.

The GOP is, however, not as unified on this issue as one might believe. There are, as has been noted here in the past, three distinct brands of Republican: social conservatives, libertarians, and corporatists. The social conservatives are the lead bunch here; they want conservative judges, and they want them now. They are beginning to wise up to the fact that the GOP wants their votes and their money but haven't delivered much (abortion, gay marriage, Ten Commandments in the courthouse). For them, this is crunch time. The libertarian wing of the party is less adamant, and in the Senate, many of this variety take the view that the rules are more important than the actual results (noting that only 10 of Mr. Bush's judicial appointees were filibustered, and the other 219 were confirmed). The corporatists are worried about this situation because if the Democrats halt all Senate business, they may lose out on favorable legislation.

The Senate, thus divided, may have a hard time changing the rule, although they only need 51 votes to do it. Senator Frist, if he had the 51 votes needed (or even 50 because Vice President Cheney gets to break any tie vote), all he would have to do to force the Democrats to yield is to schedule a vote. If Senator Reid and the other Democrats had to choose between shutting the Senate down, and backing off on the10 judges to preserve their right to filibuster in the future, smart money might bet on a climb down. But Senator Frist hasn't scheduled a vote. If he has 51 backers, why delay? Or better, why vote if you aren't going to win?

The issue is a problematic one, and the troubles stem from judges pretending to be above politics. The law is inherent political (a Marxist would say it reflects the interests of the ruling class) because deciding the rules under which a society operates can be nothing else. The interpretation of those laws is every bit as political as deciding what they are. In America, federal judges have done may unpopular things, often right (desegregation), sometimes wrong (approving the internment of Americans of Japanese descent during WWII). But they are unaccountable and serve for life. In this regard, they resemble the Politburo of the Soviet Union's Communist Party (which underestimates the turnover in the former USSR). The people lack the ability to wisely elect judges it is said, but many states do just that without any apparent harm. However, the big deal is longevity. Chief Justice Rehnquist has been on the Supreme Court for 33 years. This is simply too long; too much power devolves to the judiciary. Far better would be a 10 year, non-renewable term, or at least renewable only after a period out of office. The politicians would fight less over a man or woman who would be out in a decade rather than in for life.


© Copyright 2005 by The Kensington Review, J. Myhre, Editor. No part of this publication may be reproduced without written consent.
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