Americans want 60 votes for judges

Republicans seem to believe that Americans want all of President Bush’s judicial nominees to be confirmed by the Senate. They don’t. Republicans seem to believe that Americans oppose the use of the filibuster. They don’t. Three different poll questions from three pollsters all confirm that a majority supports the filibuster.

Republicans seem to believe that Americans want all of President Bush’s judicial nominees to be confirmed by the Senate. They don’t. Republicans seem to believe that Americans oppose the use of the filibuster. They don’t.

Three different poll questions from three pollsters all confirm that a majority supports the filibuster.

Gallup attempted to explain the process: “As you may know, the filibuster is a Senate procedure which has been used to prevent the Senate from passing controversial legislation or confirming controversial appointments by the president, even if a majority of senators support that action. A vote of at least 60 senators out of 100 is needed to end a filibuster. Do you favor or oppose the use of the filibuster in the U.S. Senate?” Voters endorsed use of the filibuster by a 12-point margin.

Last week, my sparring partner, David Hill, criticized that question, complaining that “none (of the questions) presents the filibuster as … blocking an up-or-down vote.”

Well, enter the Time poll, which, just a few days ago, asked, “Some Republicans in the Senate want to eliminate the ability of Democrats to use the filibuster, or extended debate, to block the Senate from voting on some of President Bush’s judicial nominees. Do you think the Republicans should or should not be able to eliminate the filibuster in this case?” Only 28 percent wanted to allow Republicans to end the filibuster, even after being told it blocked an up-or-down vote, while 59 percent favored keeping the filibuster in place.

The NBC News/Wall Street Journal poll took yet a third approach. “As you may know, in the last term of Congress, some senators used a procedure called a filibuster when it came to some of President Bush’s judicial nominees. When this happens, it takes the votes of 60 senators instead of 51 to end debate and hold a confirmation vote for a nominee. In your opinion, should the Senate maintain the filibuster rule or eliminate the filibuster for judicial nominations?” Here, by a 10-point margin, Americans voiced support for the filibuster.

Each of those questions is open to criticism. But three different questions, authored by three different polling organizations, provide exactly the kind of convergent validity we long for. When we get it, we can be pretty confident we are measuring something real. Voters want to retain the filibuster.

Hill’s other critique focuses on the failure of these questions to mention majority rule. Of course, the Gallup question notes that the 60-vote requirement prevents confirmation “even if a majority of senators support that action.”
We took a more direct approach, asking voters whether it should take 51 or 60 votes out of 100 in the Senate to confirm a Supreme Court nominee. More than two thirds (69 percent) said, “A nominee should have to get the support of at least 60 of the 100 senators.” Just 29 percent believe, “When the president nominates a justice to the Supreme Court it should take the votes of only 51 of the 100 senators to confirm the nominee and make them a Supreme Court justice.”

Until this year, Republicans have seen no magic in 51 votes out of 100. Sens. Orrin Hatch (R-Utah) and Bill Frist  (R-Tenn.), among many others, proudly proclaimed their sponsorship of a bill to require 60 votes to raise taxes.

A lifetime appointment to the courts is no less serious than a tax increase. With much at stake, Americans prefer consensus to conflict.

Filibusters force presidents to achieve consensus. Most presidents have cleared that hurdle most of the time. Even George Bush has forged a 60-vote consensus on 95 percent of his judicial nominees. If he can’t get 60 votes on a few, he ought to take the hint. Find someone else. Don’t change the rules.

Mellman is president of The Mellman Group and has worked for Democratic candidates and causes since 1982, including Sen. John Kerry (D-Mass.) last year.