SEN. SAM BROWNBACK (R-Kan.), one of Congress' conservative culture warriors, opposes one of President Bush's judicial nominees because she dared to attend a same-sex commitment ceremony in 2002. Whether they want to enable the senator's bigotry is a question for Kansans and, eventually perhaps, the rest of us (Brownback is a possible 2008 presidential candidate). But the Senate can and should take action to prevent a single senator from imposing his prejudices on the entire body.
A senator can frustrate the will of the Senate by using a "hold," which allows any senator to block a vote on a nominee or piece of legislation. The practice is indefensible even when asserted on behalf of a worthy cause, and even when a senator is open, as Brownback was, about his obstructionism. Rooted in tradition and Senate rules that often require unanimous consent for business to proceed, the hold undermines the principle of majority rule even more than its procedural kissing cousin, the filibuster.
Brownback's hold on Michigan Appeals Court Judge Janet Neff, who was nominated for a federal district judgeship, was an especially obnoxious use of the procedure. Brownback is fixated on the fact that Neff attended and spoke at a ceremony in 2002 at which the daughter of the judge's next-door neighbor exchanged (legally nonbinding) vows with another woman.
Even after saying that he will drop the hold that has stalled action on Neff's confirmation, Brownback still wants to question Neff, absurdly enough, about the ceremony to test his concern that she wouldn't be impartial in cases involving the legality of same-sex marriage. He has, however, dropped his much-ridiculed suggestion that Neff promise to recuse herself from such cases as a condition of being confirmed.
But if Brownback's use of the hold is wrong, so is its use by other senators. Reformers, led by Sens. Charles E. Grassley (R-Iowa) and Ron Wyden (D-Ore.), are proposing to do away with secret holds, which were supposed to end under an agreement between Democratic and Republican leaders in 1999. The theory behind requiring senators to admit they were placing holds was that they would be embarrassed into giving them up. But, far from being shamed, senators have trumpeted their holds in press releases, as Sens. Hillary Rodham Clinton (D-N.Y.) and Patty Murray (D-Wash.) did last year when they placed a hold that delayed the confirmation of the chairman of the Food and Drug Administration. That hold was designed to pressure the FDA into approving the over-the-counter sale of the Plan B emergency contraceptive.
Senate rules should be amended to abolish all holds, secret and open, so that no senator can usurp the right of the entire body to judge a nominee or a piece of legislation. The hold is defended as a form of "senatorial courtesy," but it's insulting to the people senators represent.