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Utahns deserve the full truth about filibusters
This is an archived article that was published on sltrib.com in 2005, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

I thought the Salt Lake Tribune did an excellent job last week explaining the filibuster situation in the Senate - well, one side of it, at least. Your readers deserve to know both sides.

The Tribune "news" article asked if, and implied that, I am a hypocrite because I oppose the filibustering of judicial nominees on the Senate floor, even though some of President Bill Clinton's nominees did not make it out of the Judiciary Committee when I was chairman.

Unfortunately, the Tribune appears to have bought the argument advanced by some Democrats and liberal interest groups that what happens in the committees is the same as what happens on the floor of the United States Senate. It is not. Let me give your readers the missing half of the story.

Judicial nominees encounter resistance in the Senate Judiciary Committee for many reasons. Sometimes there is trouble with a nominee's background investigation. Sometimes an individual senator on the committee - whether in the majority or minority - blocks a nominee for his or her own reasons. For example, senators may try to block a nominee from their own state if they prefer different individuals, or if they believe a nominee is not qualified.

And yes, sometimes senators, both Democrats and Republicans, play politics with nominations within the committee. All of this happened while I was chairman.

It also happened when Sen. Patrick Leahy, D-Vt., was chairman. And when Sen. Joe Biden, D-Del., was chairman. And when Sen. Strom Thurmond, R-S.C., was chairman. And when Sen. Ted Kennedy, D-Mass., was chairman. It has been happening within the committee since before I became a senator. It has been happening, really, since the judiciary became political - since Democrats realized they could accomplish legislative and political goals by installing judges who are willing to make law from the bench.

The fact is, the majority - the party put in power by the people - works its will in a variety of ways, within committees and without. And there's a reason the public doesn't read much about what happens within Senate or House committees: there is a lot of wrangling going on, and both Democrats and Republicans know how to wrangle and horse-trade.

But until George W. Bush was elected, no majority-supported judicial nominee was ever defeated by a filibuster. Not one. That was the tradition for 214 years, which Democrats did away with in 2003. We had restricted the filibuster to legislation only, which the Senate controls, rather than judicial appointments, which the Constitution gives to the president to control.

But Democrats crossed that line when they pulled the filibuster trigger two years ago against a very qualified nominee for the U.S. Court of Appeals for the D.C. Circuit named Miguel Estrada - followed by nine other nominees.

I have never supported filibustering judicial nominations. Not once have I even voted against cloture on a judicial nomination - in other words, out of 33 opportunities to end debate on both Republican and Democrat nominees, I always sided with those who wanted to vote up-or-down.

Yes, some - a relative few - of President Clinton's judicial nominees never made it out of committee. But for the six years I was chairman I treated them fairly, the way my predecessors claimed they had. In fact, more of President George H.W. Bush's nominees got stuck in committee than did Clinton's. But Republicans didn't throw a fit or stomp on tradition to get their way.

Further, quite a few of President Ronald Reagan's nominees were also stopped.

Even some of President Jimmy Carter's nominees never made it out of committee. The difference is, when they did, they received a vote on the floor of the United States Senate. That's what made our institution so great - despite all the partisan battles that took place within the committees, tradition and respect won out on the Senate floor. Both sides played by the rules.

That is the tradition many of us would like to restore today.

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Sen. Orrin Hatch represents Utah in the U.S. Senate.

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