GOP Senator Threatens Lawsuit Over Judicial Filibusters

By Randy Hall | July 7, 2008 | 8:21 PM EDT

( - After a 40-hour debate in the Senate failed to result in an up-or-down vote on President Bush's stalled judicial nominees, a Republican senator said he planned to file a lawsuit with the U.S. Supreme Court to end what he called the Democrats' "unconstitutional filibuster."

"The bottom line is I've had it," Sen. Lindsey Graham (R-S.C.) said during an interview on Concerned Women Today, the daily radio show of the conservative organization Concerned Women for America (CWA).

"This process is going to destroy the constitutional system of appointing judges," Graham added. "It's going to drive good men and women away from wanting to serve."

Graham said he made his decision during the "Justice for Judges" marathon in the Senate, which began at 6 p.m. Wednesday and ended 40 hours later.

Under current rules, the 51 Republican senators set the chamber's agenda but need Democrats to pass legislation and nominees because it takes 60 votes to end debate. Without nine crossover Democrats, the debate never officially ends - the equivalent of a filibuster.

After the conclusion of the nonstop debate, Democrats maintained their filibuster against Texas Supreme Court Justice Priscilla Owen and prevented votes on the nominations of two California Superior Court judges, Carolyn Kuhl and Janice Rogers Brown.

"I have decided as of 6 o'clock last night that I've had it, that I don't see any breakthrough anytime soon," Graham said during the Friday interview. "Sen. [Bill] Frist (R-Tenn.) is doing the best he can [as majority leader], so I have decided to take this case to the Supreme Court."

Regarding the Democratic filibusters of the judicial nominees, Graham said: "I think it's unconstitutional. I've got several senators who believe as I do. We have committed ourselves to bringing this issue before the Supreme Court."

Graham noted that he had "no idea" if the justices would deal with the matter or how they would rule if they did, "but I feel compelled as a senator to take this case to the Supreme Court because I'm not being allowed to vote as the Constitution requires me to vote."

Michael Schwartz, program host and CWA's vice president for government relations, praised Graham's plan.

"There is no reason to let the minority go undeterred as they flout their constitutional mandate to 'advise and consent' by refusing to give nominees an up-or-down vote, Schwartz said. "The majority should leave no stone unturned to end the unconstitutional tyranny of the minority."

However, other Republican senators were already examining alternative ways of overcoming the Democrats' filibusters.

Rick Santorum (R-Pa.), chairman of the Senate Republican Conference and organizer of the "Justice for Judges" marathon debate, joined Majority Leader Frist in stating they prefer to work within the institutions of the chamber rather than take the matter to the courts.

Frist said he is still considering pushing for a rules change that would gradually reduce the number of senators needed to confirm judicial nominations, the so-called "nuclear option" Republicans have so far avoided because they wish to retain the option of using the filibuster in the future.

Meanwhile, a number of liberal organizations applauded the Democrats in the Senate for preventing the confirmation of Bush' judicial nominees.

"The Senate should not confirm judges - male or female - whose records indicate they will roll back core legal protections that are necessary to ensure women's and girls' continued progress," said Judith C. Appelbaum, vice president and legal director of the National Women's Law Center.

"Shame on Republican leaders for calling up the most divisive nominees, like Brown, Kuhl and Owen, whom they know fair-minded senators must, and will, oppose," said Alliance for Justice President Nan Aron. "It is the Senate's constitutional duty to prevent these extreme individuals from serving lifetime positions on the federal bench."

See Earlier Story:
Senate Ends Marathon Talks With Stalemate
(Nov. 14, 2003)

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