WASHINGTON, Nov. 13 (UPI) -- Since he became president, George W. Bush has seen 168 of his nominees to the federal bench confirmed by the U.S. Senate, roughly half of what his predecessor managed to achieve over the course of an eight-year presidency.
For Senate Republicans, it's not enough.
A handful of nominees are stuck in limbo, unable to be confirmed or defeated because a vocal minority of Senate liberals have stopped the Senate from moving ahead -- stopped it cold -- and will not permit their colleagues to take an up-or-down vote on the floor.
The full Senate cannot express or withhold its consent to the nominations of Carolyn Kuhl, Priscilla Owen, Janice Rogers Brown, Bill Pryor and others to the federal circuit because a filibuster, or the threat of a one, is keeping the Senate from completing its work.
Led by Majority Leader Bill Frist of Tennessee and Republican Conference Chairman Rick Santorum of Pennsylvania, Senate Republicans took the floor Wednesday evening to begin 30 hours of debate on the issue of judges and the gridlock keeping at least four of them off the floor.
The Democrats mounting the filibuster reject the GOP's assertion that they are using extra-constitutional means to keep the Senate from its business. In their view, they are merely exercising their constitutional prerogative to advise and consent on the matter of executive nominations and that they are blocking just four because of their extreme right-wing views.
In fact the filibustering liberals have it backwards: by using the filibuster to gum up the works they are keeping the Senate from giving or withholding its advise and consent. A majority of the members of the Senate Judiciary Committee have recommended the full Senate votes its approval of the nominations -- while a minority of the full Senate, knowing full well that they could not prevent their confirmation if all 100 senators were allowed to vote, are allowing only their dissenting voices to be heard.
Senate Minority Leader Tom Daschle, D-S.D., defends the tactic. "The use of the filibuster is not unprecedented," Daschle said at a news conference prior to the kick off of the 30-hour marathon. "There have been numerous votes on cloture on judges in recent years."
Unfortunately for all concerned, Daschle is playing fast and loose with the facts. Cloture, which is used to cut off debate, is not the same as a filibuster -- which occurs only when efforts to reach cloture are unsuccessful.
Likewise, filibusters are usually temporary matters. Under the Senate rules, the majority party controls the floor and sets the agenda. In reality, however, neither party has ironclad control of the chamber's business because 60 votes are required to cut off debate and move forward if even one senator lodges an objection.
The Democrats have used this tactic to raise the bar on many issues besides judicial nominations during their time in the minority, effectively changing the constitutional design of the Senate. By way of analogy, think of a baseball umpire requiring a player to run around the bases twice before his run would count in a close game.
By using the rules to change the rules Daschle and the Democrats have set a bad precedent that the Republicans have yet to overcome.
Santorum says the GOP is not pushing the marathon "just for show."
"We're doing it to try to produce votes during that period of time, in the wee hours of the morning if necessary, to get votes on these nominees," he said Wednesday.
Never before has the filibuster been used to impose a permanent roadblock against nominations made by the executive branch. Instead of defending their tactics, the Democrats have restored to misdirection, condescendingly stating the Republicans should be grateful they have gotten 98 percent of their nominees confirmed.
They took to the floor throughout the night Wednesday to decry the effort to focus attention on the gridlock over judges, saying the American people had more urgent concerns than four nominees -- or more -- to the federal circuit. The argument, while politically salient, misses an important point.
The U.S. Constitution is silent on whether the Senate should take up issues like healthcare, minimum wage, support for U.S. manufacturing or the extension of unemployment benefits. It is not silent on the Senate's responsibility to vote on executive nominations -- but, thanks to Daschle and Barbara Boxer of California and Dick Durbin of Illinois and others, the Senate has been gagged and cannot fulfill its responsibility.
The facts are plain. Were the Senate able to vote, these judges would be confirmed, and on a bipartisan basis, not with just 51 Republican votes. The use of the filibuster is a last, desperate, almost petulant attempt to keep Bush from changing the makeup of the federal courts in any meaningful way. The Republican tactic of a 30-hour filibuster may seem extreme but it is necessary.
For too long the constitutional balance of power has been put at risk over partisan concerns like the ones keep Rogers Brown, Kuhl, Pickering and Pryor and others from receiving the up-or-down vote common courtesy and the U.S. Constitution demands they receive. The American Bar Association says the nominees are qualified for the posts to which they have been named -- the Senate should at least have a chance to render its own verdict.
If 30 hours of debate are the first step back to comity in the Senate and the restoration of the constitutional process then it is time well spent.
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(That's politics! looks at the inner working of the American political system and is written by UPI Senior Political Analyst Peter Roff, a 20-year veteran of Washington.)
