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GOP Fails to Raise Constitutional Issue in Dems' Obstructionism of Judges Wes Vernon, NewsMax.comWASHINGTON – Although Senate Republicans have been making strong arguments against the filibuster of President Bush's judicial nominees, they are not willing to confront the Democrats in court on whether denying an up or down vote on nominated judges is constitutional. That basic complaint comes from Judicial Watch, the public interest law firm that has filed just such a challenge in U.S. District Court in Washington. According to JW President Tom Fitton, Senate Republicans had refused to take that approach in a court of law, even though several of the GOP senators speaking on the floor in the 30-hour talkathon have raised the issue of whether the Constitution permits requiring a supermajority of 60 votes out of 100 when filling judgeships. There is a distinction to be made between filibusters on the Senate's role to “advise and consent” in filling judicial vacancies on the one hand, and marathon debates on legislation on the other hand. The latter is not at issue here. Fitton told NewsMax.com that when his organization sought to enlist Senate Republicans in the fight, they balked and argued that JW “has no standing,” and that instead the argument against the Democrats' obstructionistic tactics should be confined to highly technical legal arguments. “This is hypocrisy,” says Fitton, who speculates that the GOP's reluctance might stem from some “old bulls” who are extremely protective of the prerogatives of “the world’s most deliberative body.” The disparity between GOP rhetoric on the Senate floor and its limited argument in the courts has been brought to the attention of individual senators who have promised to “look into it.” In its own brief before the U.S. District Court in Washington, “Judicial Watch vs. The United States Senate, et al.,” JW notes, “The majority leader of the U.S. Senate, the chairman of the Senate Judiciary Committee, and other senators have all stated publicly that ... the judicial nominee filibusters by an obstructionist minority of senators is unconstitutional.” Nonetheless, according to Fitton’s brief, the Senate’s motion “sets forth no significant reason to depart from traditional motion practice and allow Defendants [the Senate] to brief only on the issues they currently prefer to address [i.e., the technicalities that dodge the question of constitutionality].” When contacted by NewsMax.com, a Republican Senate leadership senior aide replied that the party’s strategy in the Senate was “an achievable one.” “That is why we’re taking the necessary steps on a winning issue. This is a predicate to ultimately reaching our goal,” the staffer said, while requesting anonymity. Conservative groups that form the Republican Party’s base have long urged the GOP senators to hold a “real filibuster” and force the Democrats to talk all night and all day around the clock. Not just 30 hours, as with the current Senate floor "debate," but indefinitely until the nominees get an up or down vote. By that standard, today's talkathon is but a baby step in the right direction.
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