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

Human Events Online ^ | John Gizzi

[sdk7x7]

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.

[irv]

President Bush notifys the US Senate that (so-and-so) will be seated as judge XYZ, UNLESS the US Senate votes to disapprove the nominee and that failure to vote, either way, will be considered to be the Senate's 'consent' to the nominee.

I talked to a lawyer one time who found this solution to a problem. He said that a new non-profit organization could not be incorporated without the approval of the state attorney general. And the AG, was sllllooooooowwwww to do the approvals.

So he just sent a letter ordering the AG to appear at a designated court at a designated time to register his disapproval. This prompted a very angry call from the AG, but no appearance. Incorporation approved.

It's so simple it's beautiful.

[exDem from Miami]

I realy didn't like the idea of recess appointments because I wanted to win on the merits, but there's a logic to it:

1. We get the judges.

2. It's still an issue, and the GOP Senate margin in 2004 will probably increase because of it.

3. By NOT going nuclear, the GOP will be able to block leftwing whack jobs put forth by Pres. Hildebeast if such a disaster should ever occur.

[pollywog]

Dear President Bush.

Two words, sir:

Recess Appointments.

Regards,

L

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Ditto!!!!

[sweetliberty]

"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."

So what are they waiting for? Do they think for a minute that the RATs wouldn't use this option if the situation were reversed?

FOL, we are definitely gonna need that RAT Whacker.

.

[Paleo Conservative]

[GOP considers "nuke option}

Yes! Let's nuke Vermont!

[pjd]

I wish people wouldn't talk about Pres. Hillary as if it's a foregone conclusion.

[exDem from Miami]

LOL...I just want to be prepared!!

[Iowa Granny]

I doubt they have the votes within the Senate Republican Caucus to go nuclear. I suspect this filibuster was for the benefit of the moderate Pubbies, trying to fire them up and get them to change their votes. I doubt it will do any good. The Senate is a club of 'Nicey Nice' folks who don't know how to fight with knives.

[Bonaparte]

They should have "gone nuclear" last year. They have no choice, even if Republican turncoats defeat the vote. At the rate things are going, there will be no federal bench at all.

[NicknamedBob]

"I wish people wouldn't talk about Pres. Hillary as if it's a foregone conclusion."

More of a worst case scenario.

[paulsy]

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

He's free to announce a pending recess appointment; and he's free to notify the senate in advance that he will respect their decision in a straight up/down vote with respect to those pending recess appointments. This is almost sounds like the method of confirmation that was intended in the constitution, before the current practice started.

Question for lawyers on the board: Is there a provision in federal law for writs of mandamus or declaratory judgments calling the current Senate practice unconstitutional? I don't see a constitutional conflict with judges already appointed under the system.

???

[paulsy]

"This is almost sounds like the method of confirmation that was intended in the constitution"

...and by the way, this sounds that could be a good idea, Bush telling the Senate "I'll respect your decision to dissapprove my pending recess appointment on an up or down vote."

"I realy didn't like the idea of recess appointments because I wanted to win on the merits"

We'll never be able to win on the merits because the Democrats are cheating. When the other side cheats and shows no signs of relenting, you've gotta do what you can.

[FatherOfLiberty]

FOL, we are definitely gonna need that RAT Whacker.

.

Hey, I like THIS RAT Whacker! The only thing that would make this picture better would be to see the whacker about 16" lower...

How about some Rat B Gon?

[tysont]

I asked...

Can you document the requirement for the senate to vote on them?

and you responded by posting an excerpt from article II of the Constitution that authorizes the president to make recess appointments, but nowhere mentions that the senate has to vote on them, regardless of time frame.

I guess I have my answer.

[sweetliberty]

Whatever. There's lots of pernicious vermin that need to be exterminated.

[TheRedSoxWinThePennant]

GOP considers "nuke option

I will believe it when I see it. The only thing I have seen the GOP do in the senate this year is lay down and let the likes of schumer, clinton and daschle walk all over them.

[Consort]

I wish people wouldn't talk about Pres. Hillary as if it's a foregone conclusion.

She's optimistic that the conservatives who help to elect her husband will be there for her, as well.

[AndyJackson]

Why don't the Republicans just schedule the business in the Senate - Judicial appointment vote, and only then the various pork barrel appropriations. Until votes are taken on judicial appointments, nothing happens - no spending - no social security checks, nothing. I know - the Newter caved in 1994 instead of just keeping the government shut down.

[Hostage]

worried that changing the rules would make it easier someday for a President Hillary Clinton to get her judicial nominees through the Senate.

A President Hillary with a majority in the Senate would go nuclear right after swearing in. As a matter of high likelihood, a President Hillary with a senate majority would not wait for a swearing in to go nuclear, rather the order would be issued on election night.

[ATOMIC_PUNK]

is Frist qualified for microsurgery?

Why they have to have a heart FIRST it would be a bloated gas maximus/evaccuous expulsion of hot air and bile with only a coal black lump of flesh found inside !

Maybe !