My letter to my senators, and the squishy

Here's the letter I sent tonight to my senators, along with those still considered "on the fence" about the filibuster issue. I made some minor modifications, depending on who I was writing to, but this is it by and large:

Dear Senator,

I am writing about the upcoming vote on continuing the filibuster of judicial nominees. I ask you to support Sen. Frist in his efforts to restore a democratic vote to the Senate judicial process.

If a senator (of either party) opposes a nominee, that senator should take the floor to explain why fellow senators should vote against the nominee. If a nominee is truly “out of the mainstream,” it should not be difficult to convince six Republicans to join the Democratic caucus. The filibuster, as used properly, can be a tool of persuasion due to its extended debate, but it should not be a coup against the majority.

The arguments against the filibuster do not hold water, but of particular disgust to me is Democrats who talk out of both sides of their mouths on this issue. I could provide countless examples of Democratic senators — Leahy, Boxer, Kennedy & Byrd, among others — who fought against the filibuster as the majority, only to sing its praises in the minority. This is the height of hypocrisy.

Democrats claim that the Senate is the last remaining bastion of preserving minority rights through such mechanisms as the filibuster. However, the filibuster is a Senate rule, not a constitutional provision, and has been changed numerous times throughout the Senate’s history. In fact, Democrats have on several occasions done exactly what the Republicans now propose.

Democrats claim that the nomination of a judge, being a lifetime appointment, is so important that no judge should be approved with only a bare majority. It’s an interesting statement that certainly holds some validity as to the importance of the position, but it holds no water from a constitutional basis. There is no constitutional provision for judicial nomination super-majorities, nor is there a constitutional provision for filibusters.

Even if you can somehow muster a constitutional argument, questions about its constitutionality do not change the fact that Democrats have abused the provision since losing the Senate in 2002. It is more easily argued that their position of asserting minority rule over the majority is anti-constitutional.

In fact, before 2003 the filibuster was used to defeat a judicial nomination on only one occasion, in a bipartisan manner against Abe Fortas. Nineteen Democrats joined 24 Republicans in voting against cloture, and it was clear Fortas did not have the support of the Senate majority. Also, Fortas’ nomination lasted only four days before it was withdrawn; by contrast, some of the Democrats’ current filibusters have gone on for years.

There has been a clear understanding over the past 200 years that the filibuster is overstepping constitutional bounds against judicial nominees. To filibuster legislation, which is the sole realm of the legislative branch, is one thing; to employ the filibuster in a way that adversely impacts another governmental branch in a situation where the Constitution dictates joint responsibilities between branches, is quite another. The filibuster is not a form of Advice & Consent — it is blatant obstruction to constitutionally-dictated responsibilities.

The Democrats like to claim the filibuster is part of the checks and balances established by the Founding Fathers, but I find this a bunch of hooey. The checks and balances are in place to make sure no one branch of government (e.g. the president) has absolute power (e.g. he can’t do as he pleases with judges), but rather has to get approval from another branch. The filibuster allows a minority to take away the majority’s rights within one branch. That’s not a check and balance — it’s legislative fiat.

I also find the argument that Republicans started this issue against President Clinton to be too much finger-pointing. In Clinton’s first two years, he had a Democrat-controlled Senate, and 19 of his 22 nominations were confirmed (and no nominees were filibustered by the GOP minority). After 1994, Clinton had to work with a Republican Senate to get his nominations through committee and out to a floor vote. Let me repeat that: the Republicans controlled the Senate, as well as the judiciary committee, so they could offer their Advice & Consent role as the controlling party. Like it or not, if they didn't approve of a nominee, the voters had given them a majority so they could refuse those nominees (either in committee or on the floor).

President Bush is asking for the same Advice & Consent, and he's had the votes for his nominees since Republicans took over in 2002. The Democrats refuse to offer Advice & Consent because they're suddenly in the minority, so they undertake the filibuster to take away the majority rights they enjoyed for so many years.

Sen. Reid’s compromise offers, to allow a certain number of votes in exchange for a certain number of filibusters, are a joke. When Reid says Republicans can choose which candidates should have guaranteed votes, he might as well admit that none of the nominees are “out of the mainstream,’ as the accusation goes, but rather that Reid and the Democrats just want to be a continued thorn in the president’s side.

Let me finish with something that your colleague, Pennsylvania’s Rick Santorum, recently wrote: “The people have only two methods for influencing the selection of federal judges: their votes for president and their votes for senator. In November they rejected the presidential candidate who vowed to impose an ideological litmus test on all judicial nominees, and they chose the one who promised to appoint men and women who would uphold the law. They voted out the Senate minority leader who devised these destructive judicial filibusters and returned a Republican Senate with an enlarged majority. Senate Democrats however, have opted to disrespect the people’s voice and continue their audacious and constitutionally groundless claims for minority rule.”

In other words, elections have meaning and consequences, and it’s the expectation of the American people that their elected representatives listen to those messages.

This vote on the future of the filibuster will be remembered by your constituents and the American people for years to come — or at least until your next election. I look forward to your vote.

Thanks for your time.