Stop Senate Democrats’ odd reading of the Constitution

JOHN WARNER has served concurrently with five presidents and stands second only to Harry Byrd Sr. as the Virginian with the longest Senate service. He has fought policy battles ranging in size from historical flyspecks to the Cold War. He has been a sailor, a Marine, and a secretary of the Navy. He has survived North Koreans, Red Chinese, and Elizabeth Taylor—not to mention ultraright uprisings within his own Republican Party.

A rare swing vote in the looming filibuster fight over judges, Mr. Warner is sure to act as his conscience dictates. In this case, friends of democracy can only hope that the order he hears it give is to side with the GOP majority, clearing Democrats’ impassable roadblock from the path long trod by judicial nominees seeking the full Senate’s determination of their judgeworthiness.

With his election, and, especially, re-election, comes the expectation that a president will put his stamp on the nation’s judiciary. Ronald Reagan appointed 83 appeals-court judges, Bill Clinton 66. Although Republicans—unsportingly, we must say—allowed two Clinton circuit-level selections to molder in committee, the pair finally won confirmation when most Republicans joined Democrats in breaking a GOP filibuster.

Since 2001, however, filibustering Senate Democrats have blocked 31 percent of Mr. Bush’s actual and floated appeals-court nominees. What’s more, the upper chamber’s 45 Democrats refused to budge on any of them until Majority Leader Bill Frist began to punch in the “nuclear code,” a Senate rule change that would allow a plain majority of senators, rather than 60 of the 100, to halt a filibuster of a judge. If such filibusters, a politically driven mangling of Senate norms, are let stand, the theoretical upshot is that an elected president could see all of his judgeship choices nixed by members of a party controlling neither house of an elected Congress. If this isn’t a gun to the head of the Constitution’s separation-of-powers doctrine, to say nothing of popular sovereignty, then Idi Amin is a champion of liberty.

The Senate twice last century changed the standard for ending a filibuster. There is nothing sacred about a Senate rule. The Constitution alone is holy. Radical obstructionism by Democrats prevents the Senate, including Virginia’s senior senator, from fulfilling a constitutional duty. “Nuclear option?” That’s too grandiose a phrase for what the Democrats’ uncouth tactic might elicit from any competent judge—a restraining order.