In a November 30 Washington Times article on the December 2 Georgia Senate run-off, reporter S.A. Miller uncritically reported Sen. Saxby Chambliss' (R) suggestion that he would support filibustering judicial nominees if they are, in Chambliss' words, “liberal activist[s].” Miller did not note that Chambliss previously said that the filibuster of judicial nominations, resulting in a denial of an up-or-down vote, is unconstitutional, or that he supported the "nuclear option" to change Senate rules to eliminate the filibuster as a procedural option for a minority of senators to block judicial nominations.

Miller quoted Chambliss saying: "[W]e have the opportunity to make sure that we are that firewall, that 41st vote to make sure that we don't have our taxes raised, to make sure that we have the right kind of judges going to the bench, not liberal activist judges." Senate rules require a supermajority of 60 votes to invoke cloture, or end debate, on most matters -- including judicial nominations. Thus, 41 votes against cloture would defeat it.

However, Miller did not note that in a Senate floor statement on April 13, 2005, Chambliss asserted that “never before in the history of the Senate has a minority of 41 Senators held up confirmation of a judicial nominee where a majority of Senators has expressed their support for that nominee.” He added: “It is for this reason, if given the opportunity, I will vote in favor of changing our rules to allow confirmation of a judicial nominee by a simple majority because under the Constitution of the United States, the Senate is required to give its advice and consent to the President on his judicial nominees.” Chambliss continued:

The Senate can say no in regard to any particular nominee, but to do so we need an up-or-down vote to decide what advice we give the President. Failing to answer the question is shirking our constitutional role in the separation of powers scheme. The Constitution spells out in certain areas, such as passage of constitutional amendments and ratification of treaties, where more than a simple majority of Senators is required. Confirmation of judges is not one of these areas.

Moreover, Chambliss and Sen. Johnny Isakson (R-GA) wrote in a May 24, 2005, op-ed in The Atlanta Journal-Constitution that “the Constitution require[s] an up-or-down vote” and expressed support for restoring what they said was “a 214-year Senate tradition whereby judicial nominees are confirmed by a simple majority.”

Additionally, Miller reported in the article that “Republican Party and conservative groups such as Freedom's Watch” have criticized Democrat Jim Martin for being “soft on crime,” without noting that the Martin campaign responded to a National Republican Senatorial Committee (NRSC) ad attacking Martin's votes on crime bills with an ad of its own, in which Martin notes that his daughter was kidnapped when she was 8 years old and states, “That's why I fought so hard to crack down on violent crime and lock up violent criminals.”

Moreover, Miller did not note that while the NRSC ad claimed Martin was “one of three to vote against making it a felony to solicit a child for prostitution,” according to a November 25 FactCheck.org article, the Martin campaign asserted that he did not support a version of the bill that included “language that would have allowed willing teenagers to be prosecuted as felons for engaging in oral sex.” The FactCheck.org article also reported that Martin did support a bill identical to the one that the ad cites except that it made clear that those prosecutions would occur only in instances in which money was being offered.

From Chambliss' April 13, 2005, Senate floor statement:

I will start by noting again that never before in the history of the Senate has a minority of 41 Senators held up confirmation of a judicial nominee where a majority of Senators has expressed their support for that nominee. It is for this reason, if given the opportunity, I will vote in favor of changing our rules to allow confirmation of a judicial nominee by a simple majority because under the Constitution of the United States, the Senate is required to give its advice and consent to the President on his judicial nominees.

The Senate can say no in regard to any particular nominee, but to do so we need an up-or-down vote to decide what advice we give the President. Failing to answer the question is shirking our constitutional role in the separation of powers scheme. The Constitution spells out in certain areas, such as passage of constitutional amendments and ratification of treaties, where more than a simple majority of Senators is required. Confirmation of judges is not one of these areas.

The Senate rules have changed on several occasions over the years as to whether and in what circumstances a filibuster is allowed, but we have, unfortunately, come to a point in time where the filibuster is being abused to hold up judicial nominees on which we are required to act; that is, to say yes or no. I believe it is in violation of the Constitution.

I want to take a point in fact relative to the circuit in which I practiced for a number of years, and that is what is happening today with regard to the judicial nominee to the Eleventh Circuit Court of Appeals. The Democrats have held up confirmation of the only nominee President Bush has made to the Eleventh Circuit Court which handles Federal appeals in my home State of Georgia as well as Alabama and Florida.

From Chambliss and Isakson's op-ed:

Article II of the Constitution clearly states that, as members of the U.S. Senate, it is our responsibility to give “advice and consent” to presidential judicial nominees. It is what this president and every president deserves. It is what the American people want. And most importantly, it is what the U.S. Constitution requires.

Yet for the past two years, the Senate has failed to carry out this duty because the minority party has filibustered several of President Bush's judicial nominees. The minority has blocked the majority from having an up-or-down vote. Not only does the Constitution require an up-or-down vote, denial of an up-or-down vote goes against basic principles of fairness; it also is unprecedented in Senate history.

We believe it is time to end this obstructionism and fulfill our constitutional duty. That's why we are supporting Majority Leader Bill Frist in his effort to restore a 214-year Senate tradition whereby judicial nominees are confirmed by a simple majority.

The Constitution specifies those few times when the Senate must have a two-thirds vote, such as to ratify treaties or override a presidential veto. But when it comes to confirming the president's judicial nominees, the Constitution does not require a two-thirds vote for confirmation. The Constitution clearly states it is the Senate's responsibility to give advice and consent.

We both wholeheartedly support discussion and debate regarding judicial nominees. It is important for each judicial nominee to have his or her qualifications examined, undergo thorough background checks and be asked tough questions. But it is also important that after a time of extensive debate, there must also be a time for a decision.

From the FactCheck.org article:

An NRSC ad claims Martin was “one of three to vote against making it a felony to solicit a child for prostitution.” Actually, Martin eventually supported the child prostitution bill after it was rewritten. He objected to language that would have allowed willing teenagers to be prosecuted as felons for engaging in oral sex.

Martin's campaign notes that he voted in favor of the bill 16 days later, after a slight wording change.

Martin voted against House legislation on Feb. 1, 1988, and was one of only three representatives to do so. Martin's campaign tells FactCheck.org that the original bill contained a constitutional problem. It defined solicitation of sodomy (which can be either oral or anal sex under Georgia law) from a person under age 17 as a felony -- whether or not it is done for money. “That's why he voted against it,” says Patrick Suter, Martin's research director. Suter said the bill as worded would have made it illegal for two willing teenagers to have sex.

The Georgia Senate then offered a substitute bill, and when it came to the House for a vote on Feb. 17, 1988, Martin voted for it. We looked at the votes and language of both versions of the bill published in the Georgia House Journal. The Senate version stipulated that a solicitation of sodomy must be “for money” to be a felony. Other than those two words, the House and Senate versions were identical. The Senate version passed the House unanimously.

From the November 30 Washington Times article:

Ads by Mr. Chambliss, the Republican Party and conservative groups such as Freedom's Watch hit Mr. Martin for being too liberal for Georgia and a champion of the liberal agenda of Mr. Obama and the Democrat-led Congress. They say he is soft on crime, backs higher taxes, and takes liberal stands on social issues such as opposing parental consent for minors to get abortions.

[...]

On the stump, Mr. Chambliss is running as much against Mr. Obama and the Democrat-led Congress as he is against Mr. Martin.

“We know the direction in which they are going to take us, [and] we have the opportunity to make sure that we are that firewall, that 41st vote to make sure that we don't have our taxes raised, to make sure that we have the right kind of judges going to the bench, not liberal activist judges,” Mr. Chambliss said at a rally at the Right Wing Tavern in Woodstock, Ga.

“Jim Martin will provide that blank check to do all of those things, ... but you can make the difference,” he told the more than 200 people who filled the bar, a focal point of politics in the Republican stronghold of Cherokee County, which is north of Atlanta and key to Mr. Chambliss' runoff strategy.

Mr. Chambliss was joined at the rally by former Republican presidential candidate and former New York Mayor Rudolph W. Giuliani, one in a parade of political celebrities stumping in Georgia that included Mr. McCain.