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Judicial Filibuster

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Now that Republicans will control the U.S. Senate, some senators have been debating whether to restore the 60-vote filibuster rule for confirming judicial appointments. I think that would be a very bad decision, for many reasons.

Historically the filibuster was not used to stop presidential appointments. A majority is all that is needed to pass legislation, but the Senate filibuster has been used to prevent a vote on key appointments and legislation. I have never understood why 41 members of the Senate should have the power to prevent 59 members of the Senate from voting on appointments made by the president. The U.S. Senate is given the power of advice and consent, but is not supposed to block presidential appointments by using a filibuster.

Senate Majority leader Harry Reid changed the Senate rules in the last session of Congress to make it easier for President Obama get his judicial appointments on the federal bench. No longer could a filibuster be used to block presidential appointments. While we might disagree with the way he did this and even why he did it, we should welcome the change. The Democratic Senate changed the rules. I believe the new Republican Senate should follow the same rules.

The framers of the Constitution assumed that appointments would pass or fail on a majority vote. They did require a super majority for making treaties or amending the Constitution. They did not intend that a super majority of 60 votes would be needed to confirm a presidential appointment.

Recent political history is another reason Republicans should not change the Senate rules. Democrats used the filibuster against all sorts of nominees by President George W. Bush. Appointees like Miguel Estrada, Janice Rogers Brown, Priscilla Owen, Charles Pickering, and others were victims of the Democratic filibuster. The Senate filibuster of presidential appointments to the federal bench has been used in the past to pursue partisan political goals. There is no need to return to a Senate filibuster of presidential appointments.

Viewpoints by Kerby Anderson

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