Nuclear, nucular, whatever it takes

In reviewing federal appellate court Judge Richard Posner's newest book on the federal judiciary this week, I took special note of his reminiscence of his appointment almost four decades ago. His mother had been a Communist, and then-Sen. Strom Thurmond (D-S.C.) asked Posner if he was too. Posner said he wasn't, so Thurmond never asked him the question at the confirmation hearings, accepting the young appointee’s assurance. Posner was provided the questions he'd be asked before the hearing, which he sailed through.

Another time, for sure, and as Posner concluded, we get fewer duds now than in those days, and fewer stars. In fact, we get fewer judges, at a time when they are needed to handle the business of the federal courts.

This brings me to the current state of affairs, where a minority of senators on partisan lines is frustrating President Obama’s appointments, this time four candidates with fine judicial credentials.

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Originally, there was unlimited debate in the senate. In 1917, at Woodrow Wilson's urging, Rule XXII, cloture, was passed to limit "talking" filibusters but to allow prolonged debate on important subjects. Cloture could be invoked by a two-thirds majority vote. In 1975, the rule was changed to a three-fifths vote. An Alliance For Justice Report on this subject points out that since 1917, Republicans have used cloture twice as often as Democrats. And the filibuster evolved from prolonged debate on subjects like the popular movie hero Mr. Smith and its first use by John Calhoun in 1841 to reprehensible debates to preserve slavery. And at that, the filibuster changed from debating important issues to frivolous commentaries about recipes and phone book lists, used solely to frustrate serious debate and confirmation action. Senators aren't required to be present or to speak now to filibuster.

Modest reforms like requiring the filibusterer to be present and talking, proposed by the Alliance For Justice, or more fundamental reforms like ending the endless filibuster so democracy can work, are now called for.

It really is time for the U.S. Senate to alter its undemocratic filibuster and cloture practices and end the constant frustration of the president’s constitutional right to make appointments. I believe the democratic process should require an up-or-down majority vote after reasonable period of real debate, letting the political chips — Democratic or Republican — fall where they may.

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