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Show Hingkley Journal of Politics 2006 Further, during these times waiting for confirmation, the federal bench is often left without judges. Except in cases such as Sandra Day O' Connor's, where the judge agrees to stay on the bench until a replacement is confirmed, seats on the bench sit empty until the Senate confirms a new appointment. (Refer to Figures 5 and 6 for the number of pending nominations at the end of each Congressional session.) If a vacancy has been vacant for more than 18 months, or if it is vacant for any period of time and the number of court filings reach a certain level, it is considered a "judicial emergency." As of March, 2006 there were 23 judicial emergencies in the federal judiciary (U.S. Courts, 2006). "Advise and consent" should entail an actual vote Former Senator Henry Cabot Lodge declared in 1893: "To Vote without debating is perilous, but to debate and never vote is imbecile" (Cornyn, 2004, p. 181). Former Chief Justice Rehnquist stated, "The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry, it should vote him up or vote him down" (Rehnquist, 1997). Senators from both sides of the aisle have commented on the importance of giving judicial nominations a floor vote. In response to Republicans using their majority to implement previously described strategic tactics and prevent Bill Clinton's nominees from receiving a floor vote, Democratic judiciary committee members stated: • Senator Dianne Feinstein (D-CA): "Our institutional integrity requires an up-or-down vote" (Feinstein, 1999). • Senator Herb Kohl (D-WI): "These nominees, who have to put their lives on hold waiting for us to act, deserve an 'up or down' vote" (Kohl, 1999). • Senator Edward Kennedy (D-MA): "We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don't like them, vote against them. But give them a vote" (Kennedy, 2000). Republican judiciary committee members said of Democrats using filibusters to prevent floor votes on George W. Bush's nominees: • Senator Orrin Hatch (R-UT): "It is also unfair to nominees who have agreed, often at personal and financial sacrifice, to judicial service only to face scurrilous attacks, trumped up charges, character assassination, and smear campaigns. They should not also be held in permanent filibuster limbo. Senators can vote for or against any judicial nominee for any reason, but senators should vote" (Hatch, 2005). • Senator Lindsey Graham (R-SC): "Filibustering judges will destroy the judiciary over time. It is unconstitutional" (Graham, 2005a). • Senator Chuck Grassley (R-IA): "The reality is that no other Senate majority has been excluded from the judicial confirmation process in over 200 years. We need to restore tradition and the law to the judicial process - we need to give these nominees an up or down vote. We need to stop this systematic denial of our advice and consent response bility by use of the filibuster" (Grassley, 2005). While the contention of this paper is aimed primarily at stopping judicial filibusters, it is important to note that the Republican practices of using strategic tactics to block Clinton's nominees from receiving a floor vote were a trigger to the current filibuster dilemmas; these strategic tactics also frustrate the judicial confirmation process and are harmful to the judiciary. However, a key component to the Republican practices of the 90's is that they were acting with a Senate majority. As such, it is primarily the duty of American voters to hold the majority accountable for its actions, and to elect a new majority if they feel the current majority has misused its power.6 In contrast, filibustering judicial nominees is a practice of the minority. The practice of the minority preventing the majority from acting was the cause of the Senate "nuclear option" (as referred to by Democrats) or "Constitutional option" (as referred to by Republicans) battles of 2005. Republican leaders, feeling that Democrats were overstepping minority bounds by preventing votes on judicial nominations, threatened to remove the power to filibuster altogether, effectively preventing the minority from ever stopping the majority's action regarding judicial confirmations again. Nevertheless, while filibustering judicial nominations does exceed appropriate governmental bounds because it thwarts the majority from acting, preventing nominees from receiving a floor vote by using previously mentioned strategic tactics also harms the judiciary and lays groundwork for future filibuster battles such as the Senate is now experiencing. "Advise and consent", whether in divided or unified government, Republican or Democrat majority, ought to mean an actual floor vote. "Filibuster trading" is a less effective way to give "advice and consent" Senator Lindsay Graham (R- South Carolina) remarked, "If we ever go down the filibuster road, we will never go back" (Graham, 2005b). Graham's words reflect the ultra-sensitive issue of changing Senate precedent and also reveal a key piece to the current judicial confirmation puzzle: once a pattern of filibustering judicial nominees is established, it is very difficult to reverse. Washington's partisan momentum makes future judicial filibusters coming from both sides of the aisle a very realistic possibility. Once down that proverbial road, it would take a monumental compromise to undo the damage "filibuster trading" could do to the Senate judicial confirmation process. Filibustering judicial nominations creates a political Russian roulette in the Senate that is a poor way to "advise" the president. The Senate has a long established tradition that "advise and consent" has meant the entire body voting to 'Losing the Senate majority has significant effects on partisan strategy, such as losing the privileges of appointing committee chairs and setting the floor agenda, as well as having the necessary votes to pass any legislation the majority supports. 67 |