Will Senate GOP Go "Nuclear" on Judicial Nominations?

Human Events, May 26, 2003 ^ | 05-26-03 | Freddoso, David

[Theodore R.]

Will GOP 'Go Nuclear' on Judges? By David Freddoso

As Democrats continue to prevent up-or-down floor votes on two of President Bush’s appellate court nominees, GOP Senate sources indicate that Republicans will wait for a Supreme Court nomination before they seriously consider resorting to the so-called “nuclear option” to get a conservative confirmed.

The “nuclear option” in Capitol Hill lingo these days means clarifying the rules of Senate debate to ensure that the filibuster cannot be used to block votes on judicial nominees.

The moment for “going nuclear,” however, may come as early as this summer if rumors about the possible retirement of either Chief Justice William Rehnquist or Justice Sandra Day O’Connor, or both, prove to be true.

The political brawl to replace the next retiring justice promises to be as ugly and bitterly partisan as the donnybrooks that took place over the Supreme Court nominations of Robert Bork and Clarence Thomas.

A survey of Republican senators by Human Events revealed reluctance to comment for the record on any particular solution to the Democratic filibusters against appellate court nominees Miguel Estrada and Priscilla Owen, or other expected judicial filibusters.

But as events unfold, sources say, Senate Republicans are most likely to exercise all other options, wait until the last possible moment, and then “go nuclear.”

Roe, Roe, Roe

Democrats are using the filibuster to block votes on Estrada and Owen—even though both nominees are considered professionally qualified to serve as federal appeals court judges by the liberal American Bar Association. The biggest underlying reason for the Democratic filibusters was made clear by several Democratic presidential candidates at least week’s candidate forum sponsored by the liberal fundraising group Emily’s List (see Capital Briefs): They fear that if Bush names two or more conservative justices to the high court, then Roe v. Wade, the opinion that legalized abortion on demand, will be overturned.

Democratic fundraising relies heavily on pro-abortion interests such as Emily’s List.

Democrats also know that a bloody fight over the issue will bring out millions of dollars in campaign cash for the 2004 cycle. Feminist organizations like Emily’s List and the National Abortion Rights Action League—who saw almost all their preferred federal candidates go down to defeat in the 2002 elections—could raise record sums of money for pro-abortion candidates.

Senate Judiciary Chairman Orrin Hatch (R.-Utah) all but endorsed the nuclear option in an interview with The Hill earlier this month.

A spokesman for Majority leader Bill Frist (R.-Tenn.) evaded questions about when and how the nuclear option could be employed.

Four possible strategies have arisen for defeating the Democrats’ filibusters. But only one appears to have any chance of putting filibustered nominees on the federal bench before the 2004 election. That is the “nuclear option,” under which the presiding officer of the Senate would rule that Senate Rule XXII, which requires a “cloture” vote of three-fifths of the Senate to end debate on a legislative question, does not apply to judicial nominations, which are not legislative questions. A bare majority of 50 senators would be enough to uphold such a ruling.

Although they played their cards close to the vest, several Senate Republicans, when asked, hinted strongly that a Democratic filibuster against a Supreme Court nominee might trigger it.

Asked twice specifically about the nuclear option, Sen. Saxby Chambliss (R.-Ga.) would only say, “There’s got to be some sort of major explosion to break the logjam. Whatever that calls for.”

Hatch, whose committee is responsible for sending Bush’s nominations to the Senate floor, deferred to Frist when asked how to deal with the Democratic filibusters. “I think its strictly up to the leader,” Hatch told Human Events. “He has my advice, and he’ll have to make the decision.”

Other Republican senators and staffers told Human Events that there are reservations within the caucus because the nuclear option, in addition to heightening the Senate’s partisan rancor of late, could also create an ugly precedent of bare Senate majorities muscling unpopular legislation into law.

Conservative Sen. Jeff Sessions (R.-Ala.), however, pointed out that Republicans have no reason to worry, since in recent memory they have not put up a serious fight against even the most extreme Democratic judicial nominees.

“Some of them say, we don’t want to give up the filibuster, but we’re not giving up anything,” said Sessions. “We’ve never used it.”

For example, Ruth Bader Ginsburg, whom President Bill Clinton appointed to the high court in 1993, was easily confirmed on a vote of 96 to 3. As an ACLU lawyer in 1977, Ginsburg had helped draft a legal report that recommended lowering the age of sexual consent nationwide to 12 years. Human Events was the first to report on her radical legal writings in support of legalized prostitution and pedophilia (see July 31, 1993 issue).

A second option is to actually change the Senate rules to explicitly forbid filibusters against judicial nominees. Frist has already begun to pursue this option, sending just such a rule change to the Rules Committee for a June 5 hearing.

But this strategy is doomed, since Senate rules indisputably allow Democrats to filibuster changes to Senate rules. Also, a vote on the rule change would require a full day of advance notice, and then a 2/3rds majority of senators present and voting—meaning that it would probably take 67 votes.

Some Senators, including Chambliss, have also voiced support for a third option: a lawsuit in federal court challenging the Democrats’ ability to filibuster judicial nominations. The U.S. Senate would be a defendant in the case, but the body cannot defend itself in court unless a majority votes to authorize its own legal representation. That could lead to a default judgement in favor of the plaintiffs, and no one would be there to represent the Senate and file an appeal.

Conservatives are wary of this option, however, since it lets courts dictate legislative matters to the Senate.

The fourth option, mentioned by one Republican senator, is for the GOP to pocket the issue and use it to their political advantage for the 2004 election—much like they did in 2002. Bush’s consistent mention of judicial nominations while on the campaign trail last year helped Republicans win contested Senate seats in Georgia, Missouri, Minnesota, both Carolinas, and Texas—and it could do so again next year in Georgia, both Carolinas, and Florida.

However, the political option alone will not likely put enough Republicans in the Senate to get a filibuster-proof majority of 60. Senate Republicans now number 51, and they will not gain more than six seats in 2004. That would be enough to push Miguel Estrada’s nomination through, but not that of Priscilla Owen, who received only 52 votes toward cloture this month.

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© Human Events, 2003

[Theodore R.]

When will Trent Lott do as he proposed last week? The Senate is out of session until next week.

[dwilli]

Has Trent Lott ever did anything to upset the democrats?
Is Frist more accomadating to the democrats than Lott?
Will we ever see another majority leader as strong as LBJ was?

[Uncle Miltie]

Blah Blah Blah. The Senate "Leadership" can hold all other business until a vote occurs on the judges. Let the Dems be seen as obstructing all the business of the Senate over two confirmable judges.

This is easy. This is softball. When will the girlies in the Senate start to play the fricking game? Rules changes are not required.

The added advantage of this strategy is that the Senate cannot pass additional laws restricting our rights, taking our money or implementing more useless bureacracy while the filibuster proceeds. Sounds like a winner to me!

[bigfootbob]

"Has Trent Lott ever did anything to upset the democrats?" NO

"Is Frist more accomadating to the democrats than Lott?" To date, YES

Will we ever see another majority leader as strong as LBJ was?" Not in the Republican ranks until we stop electing EUNUCHS

[nygoose]

This is easy. This is softball. When will the girlies in the Senate start to play the fricking game? Rules changes are not required.

You're right. At what point do we decide that both parties are working together to get the Federal Government's agenda passed. In the case of Federal judges, it's the best way to litigate without any consequences for politicians.

How confident can the people be in the Supreme Court when almost every decision appears to be voted by the political persuasion of the individual judges with no seeming regard for the law? How many 4 to 3 decisions do we gave to see in order to figure out that the Constitution is not worth the paper it's printed on? Everything in the Constitution is being usurped by a corrupt Federal Judiciary. How many Federal judges have been impeached in the history of the Republic?

As an afterthought, whoever would have thought that the interstate commerce clause would cause the possible downfall of the American Republic?

[Theodore R.]

But why won't Frist and Co. do what you propose? Where is the flaw in your reasoning? Fritz has already taken himself out of a reelection bid; so he wants to seem "nonpolitical." And he voted for the liberal Henry Foster surgeon nomination in the 1990s.

[Uncle Miltie]

I s'pose you have an answer to your questions. I chalk it up to weeniedom. Perhaps there is a deeper explanation than post-castration feelings of ennui.

[Cicero]

Republican kid: "If you don't do what I say before I count to 3, I'll punch you in the nose. One, two . . . three . . .

"OK if you don't do it before I count to 4, I'll REALLY punch you in the nose. Four . . . five.

"OK, I really mean it. I'm going to count up to 10, to give you a little more time to think over the serious consequences, so you'd better straighten up, or else!"

"Fourteen . . . fifteen. This time I really mean it!"

[F16Fighter]

If the GOP held a 99 out of 100 Senate majority, they would still react as though they were Custer at Little Big Horn.

[Theodore R.]

Yea, they'd still be trying to convert the last holdoup to their side so that he would not be "mad" at them.

[Theodore R.]

Fritz -- no it was not a Freudian slip. I really really meant Frist. FRIST is not running in 2006, but the S.C. Fritz seems to indicated that his hat is in the ring AGAIN for 2004.

[Redcloak]

Perhaps if the Pubies had a few of these...

[Theodore R.]

Probably the thing that Trent did that MOST upset the Democrats was his "stepping down" from the "leadership." Now that they have the even-more low-key Frist as "opposition leader", the Demos are really running the Senate with 49 members.

[TLBSHOW]

abortion is the reason......

We will have to wait until next week to see Trent in action.

[SMEDLEYBUTLER]

nuclear

[double_down]

Does anyonne beleive that the democrats when faced with the similar situation would not use the nuclear option? The answer to this quesion is easy - the dems have already gone nuclear by using the filibuster. Never before has a filibuster been used to block judicial nominiations on a widespread basis. And if the dems had a small majority in the senate and controlled the white house, they would surely use this "nuclear" parlimentary procedure to break any republican filibuster of judicial nominations. Dems understand the importance of the judiciary and will use bare knuckled political tactics to win.

I can see the repubs holding back on this option on lower court nominees because the general public is not watching this very closely. If they try to filibuster a SCOTUS nominee, I believe the repubs will use the nuclear option. The publicity will be much greater and the public will not support the dems while filibustering some conservative nominee who has outstanding credentials. If the repubs don't go nuclear on a SCOTUS filibuster, then I will begin questioning Frist's leadership.

[RobbyS]

Speaking of Fritz, the filibuster rule seems to have been adjusted to accomodate the really old men in the Senate. Tell the Republicans that Strom is gone, so they have no excuse for working extra hard. If they are lucky, Hollings and Byrd will drop dead on the Senate floor.

[RobbyS]

Speaking of Fritz, the filibuster rule seems to have been adjusted to accomodate the really old men in the Senate. Tell the Republicans that Strom is gone, so they have no excuse for working extra hard. If they are lucky, Hollings and Byrd will drop dead on the Senate floor.

[savedbygrace]

Weenies.

[votelife]

Dear President Bush,
With the Surpeme Court session getting ready to close, it may well be time for perhaps the most important domestic decision of your presidency: the appointment of a Supreme Court Justice(s). The main reason why I supported you in 2000 and why I wanted Daschle out of power in 02 (and 04) has to do with the courts. I want America courts to interpret law, not write law. During your presidential campaign you said Thomas and Scalia were your two model justices. Those are excellent models. The High Court needs more like them. Clarence Thomas recently said to students that the tough cases were when what he wanted to do was different from what the law said. And he goes by the law. This should be a model philosophy for our justices. Your father, President Bush lost his reelection campaign for 3 main reasosn, as far as I can see. 1. he broke the no new taxes pledge 2. David Souter 3. Clinton convinced people we were in a Bush recession (which we had already come out of by the time Clinton was getting sworn in)

I urge you to learn from all three of these: 1. on taxes, you're doing great. Awesome job on the tax cut. 2. good job so far on judicial appointments. I want to see more of a fight for Estrada, Owen, and Pickering, but I commend you on your nominations. 3. by staying engaged in the economic debate you'll serve yourself well

I have been thoroughly impressed with your handling of al Queida, Iraq, and terrorism. You have inspired confidence and have shown great leadership.

But I want to remind you that your Supreme Court pick(s) will be with us LONG after you have departed office. I urge you to avoid the tempation to find a "compromise" pick. Go for a Scalia or Thomas. Don't go for an O'Connor or Kennedy. To be specific, get someone who is pro-life. Roe v Wade is one of the worst court decisions I know of, and it's the perfect example of unrestrained judicial power.

I know the temptation will be tremendous on you to nominate a moderate. But remember who your true supporters are. I am not a important leader or politician. I am "simply" a citizen who has been an enthusiatic supporter of you. I am willing to accept compromise in many areas of government but I will watch your Court nomiantions extremely closely. What the Senate Dems are doing right now is disgusting, but as the President you have the bully pulpit to stop it. Democrats will back down if you turn up serious heat on them.

Moreover, I think public opinion is shifting towards the pro-life position. Dems will want you to nominate a moderate, but almost all will vote against you anyways. Pro-choice Repubs will likely still vote for you if you nominate a Scalia, after all, you campaigned on it. So Mr. President, I urge you to stick with your campaign statements and nominate justices who believe in judicial restraint, like Scalia and Thomas.

Happy Memorial Day and may God bless you and your family.