Bush vows bitter end fight for justices [GOP considers "nuke option}

Human Events Online ^ | John Gizzi

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by John Gizzi Posted Nov 14, 2003

As Senate Republicans last week conducted a marathon 30 hours of debate to protest and spotlight the Democrats' unprecedented filibuster to block confirmation of appeals court judges, President Bush called three of his nominees into the Oval Office and threw down the gauntlet to the obstructionist Senate Democrats.

Flanked by Texas Supreme Court Justice Priscilla Owen, California Supreme Court Justice Janice Brown and California Superior Court Judge Carolyn Kuhl, Bush said, "These people deserve an up-or-down vote on the Senate floor, and yet a few senators are playing politics and it's wrong and it's shameful."

"I will stand with them to the bitter end," said the President.

The Senate at that point was already 15 hours into the GOP-led 30-hour marathon. At the conclusion of the speaking, Senate Majority Leader Bill Frist (R.-Tenn.) was expected to bring up Senate Resolution 138, a proposal to gradually lower the number of votes needed to invoke cloture and end debate on presidential nominations.

Currently, 60 votes are needed—an impossible threshold for a GOP that controls only 51 Senate seats. Frist's plan is to propose a succession of resolutions that would progressively lower number of votes needed to invoke cloture. Because Senate rule changes now require a two-thirds vote, there is no chance any of these resolutions will pass.

That is why Senate insiders believe that losing these votes to the uncompromising Democrats may increase both popular and Senate support for the so-called "nuclear option."

Under this scenario, a Republican senator would make a point of order that it is unconstitutional to require more than 51 votes to confirm a presidential nominee and request a ruling from the chair. If the chair, as planned, rules that the point of order is correct, a simple majority of the full Senate—which the Republicans have—could uphold his ruling, effectively changing Senate rules to force simple up-or-down majority votes on nominations. Filibusters would be eliminated for presidential nominations, period.

That would mean all of President Bush's currently stalled judicial nominees would be confirmed. It would also significantly increase the chances that Bush could confirm a conservative to the Supreme Court—especially, if, as widely expected, the Republicans pick up Senate seats next November.

Many on Capitol Hill fear, however, that playing out this scenario could have an almost cataclysmic effect on the almost evenly divided Senate—whether the GOP move succeeds or even if a few Republicans bolt and allow the Democrats to overturn the ruling from the chair. As one senior Republican aide told me, "If Republicans can't come up with the 51 votes, just trying it would be akin to dropping a bomb on a neighboring state but failing to kill the heads of government. They are not going to say 'You missed!' and leave it at that. They're going to retaliate in a big way. So you've got one bullet and you can't shoot and miss."

The hawks on this issue aren't just worried about defectors from among the usual suspects—Senators Lincoln Chafee (R.I.), Olympia Snowe (Maine), Susan Collins (Me.), Ted Stevens (Alaska) and Arlen Specter (Pa.)—they are also worried about some ordinarily more reliable conservatives getting cold feet.

"The reason Republicans don't have all 51 of their senators," said a Senate aide, "is that a number of them—and not just the non-conservatives—are worried that changing the rules would make it easier someday for a President Hillary Clinton to get her judicial nominees through the Senate." Still, the "nuclear option," the aide said, comes up at "almost every meeting of the [Senate] Republican Conference." Its strongest proponents are Senate Judiciary Committee Chairman Orrin Hatch (Utah) and Conference Chairman Rick Santorum (Pa.).

The argument against going nuclear, however, falls short in the face of the fact that Republicans basically rubber-stamped President Bill Clinton's judicial nominees. For example, Only three conservatives—Senators Jesse Helms (N.C.), Don Nickles (Okla.) and Bob Smith (N.H.)—voted against confirming far left-wing ACLU lawyer Ruth Bader Ginsburg to the Supreme Court. When Nickles retires next year, all three of those fighting conservatives will be gone from the Senate.

Frist spokeswoman Amy Call told HUMAN EVENTS, "At this time, all options are open." Earlier this year, Frist, himself, spoke to me about the nuclear option, saying, "I carry it in my pocket." He was concerned, however, about not having the votes to pass it. Asked about the long-term wounds it might inflict on the Senate, the former surgeon deadpanned: "Remember—I used to cut people's hearts out for a living."

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Copyright © 2003 HUMAN EVENTS. All Rights Reserved.

[Monti Cello]

The Republicans have little to lose with the so called 'nukular option', because they wouldn't have the balls to conduct a filibuster on Dem nominees if the situation were reversed, and they would fold like tents if forced to carry it out.

It's like they're saying, we can't be tough because it would prevent us from being tough in the future. It's nothing more than an exercise of the imagination since the Republican Senate is intrinsically averse to toughness in the first place.

[StriperSniper]

all three of those fighting conservatives will be gone from the Senate.

Well I think they now have at least four newly minted ones, Brownback, Coleman, Graham, and Santorum.

[MadMoo]

Recess Appointments, PLEAE!

[pogo101]

Re Recess Appointments:

Remember that recess appointees are unpaid in most situations. 5 USC sec. 5503.

[af_vet_1981]

Still, the "nuclear option," the aide said, comes up at "almost every meeting of the [Senate] Republican Conference." Its strongest proponents are Senate Judiciary Committee Chairman Orrin Hatch (Utah) and Conference Chairman Rick Santorum (Pa.).

Go nuclear and never elect another Democrat as President. The Clintons and liberals have so polluted the party it is not worth saving. At least one fifth of them are traitors anyway.

[jackbill]

When Hatch appeared on C-SPAN earlier this week he sounded fairly certain that they would use the nuclear option. The only question seemed to be when. He mentioned that the RATS said that if they used it "they would blow up the Senate", so Hatch was fairly certain that it wouldn't be used until after all of the major legislation was passed later this year.

By that time, there will be more filibusters on more nominees. With a growing list, perhaps some of those Republicans who currently oppose it will finally get fed up and join the majority.

By the way, the last time that the nuclear option was "used" (1975?) the mere threat of using it was enough to make the opposition back down.

[Ben Hecks]

I'm trying to remember where I heard the discussion of a process that would allow the House to confirm judicial appointments by a simple majority vote in cases where the Senate fails to act. The Senate has pretty much failed to act for the past ten years.

[PokeyJoe]

so, start a PAC for recess appointments.

[You Gotta Be Kidding Me]

"I like that. Any chance of A). them doing it, and B). its legality?

The Constitution provides for the Senate's "advise and consent" on judicial nominees. It does not specify what constitutes "advise and consent". The Senate's silence (no vote) can be considered to be the Senate's tacit approval. In any event, it's the President's call and it would be up to the Senate to object. The Executive Branch is not constrained by the Legislative Branch's internal rules. The Constitution does not require the US Supreme Court to "bless" the appointment of judges, or require the President to accept the Court's displeasure with a nominee. It's strictly between the Senate and the President. Of that, I'm pretty sure, but it's been a few months since I've read my copy of it.

Would President Bush do it?

Sorry, he ain't got the 'cajones' for that one.

The article is right on the 'nuclear option'. What difference would it make if it backfired? The Republicans, with dopey smiles, have allowed the likes of (voted to approve) Ruth Darth-Vader Ginsburg. The Republicans don't have the 'cajones' to fillibuster a Democrat's nominee.

[SAJ]

In fact, the JFK/RFK business led to a federal law in 1969 expressly prohibiting the practice of nepotism on the part of the President and senior administration officials.

[chainsaw]

"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session" (II, 2, 3). The provision was originally created to fill vacancies that actually occurred during a recess, but it has since morphed into an all-purpose executive tool to counter Senate intransigence.

Now, go do your own research. Prove me wrong.

[TheBigB]

Correct. There are 51 Republican senators and 48 Democratic ones. Jeffords (I-VT) caucuses with the Dems.

I'm not ready to give up on Frist yet. And I'm not just saying that because I'm in TN. Bill Frist is a blueblood...he's an exceptionally talented medical doctor by training. Doctors, by nature generally, are not confrontational. He's conservative and I like him, and I think he's been a very good senator. But he doesn't have the history of conservative advocacy like some of the others in the Senate. I hope Rick Santorum is the next Majority Leader, myself.

[Sender]

That's right. Fear of the Democrats using the new rule change later is a moot point considering the Democrats will do whatever it takes to pack the courts with MoveOn judges as soon as they are in power. It's like saying we shouldn't shoot terrorists because then they might shoot back. Shoot first, fill the vacancies now so that whenever the Dems do get back in power, the number of available appointments will be at a minimum. It will be a lot more 'fair' under equal nuclear rules than it is now.

[carenot]

They should stay in session 24/7 until a proper vote can occur. Keep them there through New Years eve if they have to.

See? We do agree. :)

[small voice in the wilderness]

The rats are operating in a lawless state. The republicans are trying to fight them using law. It doesn't really matter what our side does. They simply refuse to abide by the law. People like that cannot be dealt with using persuasion, threats, common sense, tradition, or the U.S. Constitution. It is time for the Senate Republicans to say nothing more about it. AT ALL. And it is time for President Bush to begin his recess appointment list. No talk, no reasoning, no debate, no arguing the law. Quiet determination is what I would like to see. The rats will come unglued. Let them. They have left W. and the Senate Republicans with no other choice. I think the American people will get it.

[narses]

Here is a better explanation.

[Political Junkie Too]

"The reason Republicans don't have all 51 of their senators," said a Senate aide, "is that a number of them—and not just the non-conservatives—are worried that changing the rules would make it easier someday for a President Hillary Clinton to get her judicial nominees through the Senate."

Haven't the Republicans been watching the trends? Don't they realize that they will likely still hold the Senate no matter who is President in 2008?

-PJ

[zook]

Not to mention that if a President Hillary Clinton has 51 votes in the Senate, then she deserves to have her nominee's voted upon. That's the whole point.

[jackbill]

I'm trying to remember where I heard the discussion of a process that would allow the House to confirm judicial appointments by a simple majority vote in cases where the Senate fails to act. The Senate has pretty much failed to act for the past ten years.

I doubt very much that you would be able to find that the House has ANY role in the advise and consent procedure.

[Reshinger]

The Nuclear option and recess appointments are good strategies. Recalling/Impeachment of judges practicing judical abuse must also be considered. It may be a good time to start removing some of the "crazies".