Within a few weeks we shall probably find out whether the Republican Senate will exercise what has been called a "nuclear option" to confirm President Bush's controversial nominees to the U. S. Circuit Court of Appeals.
There are two issues in this controversy: whether the Senate can stifle debate by absolute majority vote, and whether the president of the United States will be granted what would be in effect an absolute power of appointment to the federal courts.
There is no constitutional question here. The United States Senate, like all long-established legislative bodies, writes its own parliamentary rules. Under Robert's Rules of Order, any question may be argued for as long as members wish, until two-thirds of those present vote to close debate. Under Senate rules, since 1974, only a three-fifths vote is required for closure. The Republican majority in the Senate is still not large enough to muster three-fifths. What is now being proposed instead is a parliamentary trick to end a filibuster. A Republican would raise a point of order to the effect that further debate is unnecessary; the president of the Senate, Vice President Cheney, would rule in favor of the point of order; a Democrat would appeal that ruling, but to sustain the appeal requires only a majority, not three fifths. This is the "nuclear option" that would override the rights of the minority to prolong debate.
A similar situation arose in the House of Representatives in 1889, where the issue was the determination of a quorum for doing business. The story, as told in Barbara Tuchman's "The Proud Tower" (1966), is an exciting one, and the commanding role played by Speaker Thomas B. Reed, Republican of Maine, was one of the finest moments in congressional history. It resulted in a new set of parliamentary rules for Congress that endured for decades.
The Democratic leadership in the Senate has promised retaliation if the "nuclear option" is invoked. Much of Senate business is transacted through the custom of "unanimous consent" - reading of the minutes, call for orders of the day, and reading of the text of legislation under consideration are normally dispensed with by unanimous consent of those present. Any senator, on the other hand, may demand and get a reading of the full text of a bill, which may run to many hundreds of pages. Nobody in the Senate wants to see this kind of dilatory action, which theoretically could be prevented only by a rewriting of the Senate's own parliamentary rules, which in turn would require a two-thirds vote.
What has brought the Senate to this difficult pass? Only the determination of President Bush to force a vote on the confirmation of four nominees to the federal bench, and the determination of the Democrats to prevent their confirmation. In the last Congress, these same four were not even reported out of the Senate Judiciary Committee for action by the full Senate, because the Democrats, who had approved nearly 200 other Bush nominees, threatened to filibuster them. The Democratic opposition has had some justification. Nominee William Myers, for instance, who is proposed for the Circuit Court of Appeals, the second-highest court in the federal system, spent years in Washington as a lobbyist and has had no experience as a judge; he has expressed open hostility to established environmental laws. A straight Senate confirmation vote, without a filibuster, would presumably be along party lines.
A comparable situation existed in 1970 with President Nixon's nomination of G. Harrold Carswell to the United States Supreme Court. President Nixon, counting on Senate support from anti-civil rights southern Democrats, was willing to overlook Carswell's judicial record as a segregationist, or even that Carswell had lied under oath to the Judiciary Committee during the nomination hearings. Carswell was narrowly defeated in the Senate by a bipartisan coalition, but only after a bruising fight, and much bitterness remained.
The lesson that has been repeatedly driven home since 1970 is the same lesson of two centuries of the American republic: nominations of judges should not be narrowly partisan issues but should require broad public support. Partisan legislation enacted in one congress can be modified or repealed in another; but judicial appointments are for life.
It is certain that future appointments to the federal courts, and to the Supreme Court above all, will be controversial, especially when such issues as the scope of national security, religion in the public schools, and the rights of gays are increasingly partisan and divisive. Spokesmen for both parties insist that no "litmus test" on abortion will be required of potential nominees, but nobody really believes this. When questions that cannot be resolved by legislation more and more come before the federal courts, it is all the more important that our judges be chosen for their juristic ability and fairness, not for their reflection of presidential preference - especially when, in the process of Senate advice and consent, they are confirmed by a majority vote, not by two thirds.
Mark DeVoto is a Professor Emeritus of Music.
