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special to the national law journal Todd Gaziano is director of the Center for Legal and Judicial Studies at the Heritage Foundation. There is a fight brewing in Washington over the elimination or modification of the U.S. Senate’s filibuster rule as it applies to judicial confirmations. While the rules may be dry, the political tempest swirling around them makes the debate the sexiest subject since Clinton’s impeachment trial. Several tactics have dramatically escalated the already intense confirmation wars, but the most serious of these are the multiple, sustained filibusters now under way for nominees with majority support. There is also the promise of filibusters for several other nominees. As documents recently submitted to the Senate Constitution subcommittee demonstrate-despite popular opinion to the contrary-neither party has ever used a filibuster to permanently block a confirmation vote of someone with majority Senate support. (Abe Fortas’ nomination for chief justice of the U.S. Supreme Court was withdrawn after a brief, bipartisan filibuster demonstrated that he did not have majority support.) Most Republican senators have never voted to support a filibuster of a judicial nominee. A potential vacancy on the Supreme Court makes the question even more urgent. Some prominent liberal academics, still brooding over the 2000 election, have urged the Senate not to confirm anyone until after the 2004 election. Democratic Party officials and the Senate Democratic leadership have made judicial-confirmation obstructionism a partisan pledge. The Democratic National Committee has a Web site devoted to the defeat of any Supreme Court nominees of President Bush, complete with searing rhetoric about the death of our most fundamental freedoms. Such juvenile scare tactics seem silly, but the same conclusory accusations are being used now-instead of any substantive reason-to oppose Miguel Estrada, whom the American Bar Association unequivocally approved. But even assuming both parties are filibuster-happy, the question remains whether this fundamentally undemocratic device should be used to frustrate the Senate’s constitutional advice-and-consent obligations. Extended debate is a Senate tradition. But keep in mind that the indefinite filibuster is a device with an ugly racist history rooted in the mid-19th and mid-20th centuries. In 1975, the Senate Democrats changed-and weakened-the filibuster rule with a simple-majority vote. If the filibuster rule is weakened now-as it was in 1975-it will never be restored to its former ignominy. The filibuster question can and will be answered in a nonpartisan way. Now, in this superheated climate, the Senate is considering proposals to end or amend the filibuster rule as it applies to judicial nominations. Senators Bill Frist, R-Tenn., and Zell Miller, D-Ga., have proposed slightly different bills that would allow the minority to engage in a limited filibuster, but the number of votes needed for cloture to end debate would be reduced with each successive vote. The first cloture vote would still require 60 senators to end debate; subsequent cloture votes would require 57, 54 and then a simple majority of those present and voting. (Almost exactly the same proposal was introduced by senators Tom Harkin, D-Iowa, and Joe Lieberman, D-Conn., in 1995 and received the votes of 10 current Democratic senators.) Unfortunately, there is a standing Senate rule purporting to require a two-thirds vote to modify any other Senate rule. Many constitutional scholars have opined over the years that such a supermajority-rule-change rule is unconstitutional in either house of Congress. Another option being discussed is a parliamentary ruling (which could be upheld by a simple-majority vote) that an extended filibuster either is out of order in confirmation debates or is unconstitutional as applied to such debates. Such a ruling may seem contrary to recent Senate practice, but the filibuster never has been used as a permanent means of preventing a judicial confirmation vote; so that issue never was squarely presented to the Senate. A court challenge to the current filibuster is also being discussed. At first blush, this seems foolish. The courts should dismiss such a suit on the ground that it presents a political question delegated by the Constitution to the Senate. But a suit challenging the current rule might be a strategic way of establishing that jurisdictional precedent. A parliamentary ruling eliminating the filibuster or a ruling allowing a majority vote to modify the filibuster would each present an almost identical political question. Thus, the mechanics and likely legality of such a rules change is left with the Senate. On the merits, the Frist-Miller/Harkin-Lieberman proposal would be a compelling improvement over the current rule. It would give a determined minority an opportunity to ask questions or extend debate, while also supporting the fundamental parliamentary precept that the simple majority ultimately must prevail on all matters not requiring a higher margin by the Constitution. It is also the only proposal that will save any portion of the filibuster. If it is not reformed, it will be killed-for all time.

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