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GO NUCLEAR! (Response to NRO Editorial)
16 December 04 | Lancey Howard

Posted on 12/15/2004 11:23:35 PM PST by Lancey Howard

The editors at National Review Online have opined that the Republicans must resist the temptation to change the Senate rules (which Republican Senators believe they can do by a simple majority) to prevent filibusters of judicial nominees. This threat to change the rules has been referred to as the "nuclear option".

(The NRO editorial and the accompanying Free Republic thread can be found HERE.)

The NRO editors believe that it would be wiser for Republicans to play the "Democrats are obstructionists" card during the political campaign season and hope that the folks who comprise the malleable "middle" (the clueless "undecideds" like the people on the street who get interviewed by Jay Leno) save the day for the rest of us by taking their squishy "rage" out on the Democrats. No thanks.

THE SLIPPERY SLOPE

First of all, let's sum up how we got to where we are today and where we will inevitably end up unless something (the "nuclear option") is done about it.

For the first 200 years of our nation's existence, the vast majority of Presidential judicial nominees were confirmed after legitimate "advice and consent" hearings and an up-or-down vote. Not a whole lot of public attention was even paid to lower-court nominations and most were confirmed by the Senate (regardless of party alignment) with little fanfare or controversy. Even Supreme Court nominations, while obviously generating considerably more interest, were largely considered done deals, occasional burps like LBJ's Abe Fortas notwithstanding.

Then, in the 1980s, everything changed.

During the Robert Bork confirmation hearings the Democrats devised and unveiled the smear tactic now known colloquially as "Borking". Over the next fifteen years or so, the Democrats fine-tuned and expanded this "art of the smear". At one point they conducted what was for all intents and purposes an inquisition of Supreme Court nominee Clarence Thomas. Thomas himself referred to his "Borking" by the Democrats as a "high-tech lynching". Indeed it was. Fortunately, the Democrats' attempt to destroy Thomas failed and he was ultimately confirmed. It was also fortunate that the Democrats had not yet "progressed" to where they are today.

Fast forward a few years and today we see that the Democrats are filibustering any Republican nominee who appears to take the United States Constitution seriously. And they are doing so routinely!

PICK YOUR CLICHE

"The toothpaste is out of the tube".... "The genie is out of the bottle".... pick your cliche; the bottom line is that after 200 years of working just fine, the Constitution of the United States has been irreversibly perverted by the Democrats. The 200-year tradition of Senate "advice and consent", as envisioned by the Founders and set forth in the Constitution, is gone forever.

The Democrats are fully aware that as a consequence of taking the drastic step of routinely filibustering judicial nominees, virtually every nominee to a federal bench who is sent up by future Democrat Presidents (and there will likely be some, like it or not) will be turned away by the Republicans as a "liberal judicial activist". Tit-for-tat. What goes around comes around. What's good for the goose is good for the gander. Etc. Pick your cliche.

RECESS APPOINTMENT MERRY-GO-ROUND

So here we are. It's a whole new world for the judiciary and it is a world where appointments to federal benches, including the Supreme Court, will be primarily recess appointments. It's the inevitable bottom of the slippery slope and if we are not there yet we are closing in fast. As the current lifetime appointments retire or die off, the various federal benches (including the Supreme Court) may as well have turnstiles installed as each new President packs the court with his own recess appointments (which last only for the duration of a Congressional term) and the previous President's recess appointments go home. "Advice and consent" be damned. That stuff is obsolete.

This will eventually lead to a situation where in times of a Republican Presidency the courts will be loaded with "strict constructionists" who take the Constitution seriously and in times of a Democrat Presidency, with liberal activists who make rulings based on the chic political correctness of the day. (The Constitution is a "living document" don't you know. If it wasn't, it would include a process for amendment..... Oh, wait....)

Every time there is a switch in the party that controls the Presidency (resulting in the courts being once again turned upside down), the motions and the lawsuits will rain down like cats and dogs and reversals will be the rule of the day. The judiciary branch will be in a constant state of utter chaos.

Congratulations, Democrats.....

We will soon arrive (if we have not already arrived) at a point where the only way a nominee of any consequence will ever get confirmed to a lifetime appointment is if a President can get 60 votes in the Senate (enough votes for closure against a filibuster). This will normally mean a President must have a Senate comprised of at least 60 members of his own party. History shows us that this is a very rare situation.

But imagine that this rare situation someday comes to pass. The Supreme Court, filled with recess appointments, could then be filled with NINE fresh lifetime appointments. Now imagine that the lucky President who finds him or herself in such a position is some future version of Hillary Clinton. (Roll that one around in your head for a minute.... carefully.)

THE "NUCLEAR OPTION"

On the other hand, there is the "nuclear option". Unfortunately, the "nuclear option" appears to be the only option at this point. The next four years are likely to provide an historic opportunity for a conservative President, George W. Bush, to shape a Supreme Court comprised of a few more "strict constructionists"; a Supreme Court which values the rule of law, the separation of powers, and American tradition.

This opportunity must not be squandered.

As for the soon-to-be-outraged Democrats? Well, is there really any doubt that the party that invented "Borking" and has beaten the process down to the disgraceful low-point we now have would "go nuclear" if the shoes were on the other feet? Please.... OF COURSE they would.


TOPICS: Constitution/Conservatism; Editorial; Government; News/Current Events; Politics/Elections; Your Opinion/Questions
KEYWORDS: filibuster; filibusters; judicialnominees; judiciary; nuclearoption; nukuler; supremecourt
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To: ForGod'sSake
bump! bump! bump! :^D

81 posted on 12/16/2004 10:57:53 AM PST by MeekOneGOP (There is only one GOOD 'RAT: one that has been voted OUT of POWER !! Straight ticket GOP! ©)
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To: ForGod'sSake
hehe! :^D

82 posted on 12/16/2004 11:00:07 AM PST by MeekOneGOP (There is only one GOOD 'RAT: one that has been voted OUT of POWER !! Straight ticket GOP! ©)
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To: Lancey Howard
"Supreme Court comprised of a few more "strict constructionists"; a Supreme Court which values the rule of law, the separation of powers, and AMERICAN TRADITION."
83 posted on 12/16/2004 12:28:47 PM PST by mtbopfuyn
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To: Lancey Howard

Yes write more and in addition to posting them here first! Mail them to the editorial staff of the NYT,WSHPST,NYPOST,LATIMES ...


84 posted on 12/16/2004 1:33:49 PM PST by Coffee_drinker (The best terrorist is a dead terrorist)
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To: ForGod'sSake
Poor scholarship on the part of the ones doing the accepting, I would think.

One has to wonder why the Hugo Black reference is widely accepted as the "first" decision to cite the "separation" language. Thoughts?

85 posted on 12/16/2004 2:05:55 PM PST by Ready4Freddy (Carpe Sharpei !)
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To: Coffee_drinker

Thanks for your kind words!

Regards,
LH


86 posted on 12/16/2004 3:20:14 PM PST by Lancey Howard
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To: mrsmith

Thanks for your reply.

The fact is that any "strict constructionist" that Bush nominates will get: a) Borked, or b) filibustered. So Bush has four options: a) nominate "centrists" (like David Souter), b) nominate judges who have absolutely no paper trail and/or cannot be pinned down ideologically by anybody (a roll of the dice), c) surrender the lifetime appointments and go for the short-term fix of recess appointments, or d) implore the Senate Republican leadership to "go nuclear".

Dubya is a man of principle and a man of his word. He has said that he will nominate only "strict constructionists". But the Democrats will not accept "strict constructionists", so in order for Bush to remain true to his word, and the only way he could keep his promise, would be to get his nominees on the bench via recess appointments.

Except that there is a "nuclear option" and it absolutely MUST be excercised. There may be no second chance.


87 posted on 12/16/2004 3:37:46 PM PST by Lancey Howard
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To: GOPJ

Thanks for your kind reply!


88 posted on 12/16/2004 4:07:21 PM PST by Lancey Howard
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To: Ready4Freddy; ForGod'sSake
Our essay writer should do his own research, doncha think?

When you are done with your straw man arguments (or red herrings, or literacy problems, whatever) you can do a little research (and reading comprehension practice) of your own.

Nobody here (certainly not me) ever said that Hugo Black was the first to use the words "separation of church and state". My point was that the athiests of the ACLU and their Democrat allies have, over the past 25 years, leaned on Black's 1962 use of the phrase. (ENGEL v. VITALE)

Check it out if you wish.
And please read more carefully before you imply that I don't do research.

Anyway, I do appreciate your interest in this topic and I have learned interesting things from your posts. Thanks for reading the essay and for your replies.

Regards,
LH

89 posted on 12/16/2004 4:58:42 PM PST by Lancey Howard
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To: Ready4Freddy; ForGod'sSake
By the way, here is the most interesting paragraph from ENGEL v. VITALE (my underlines):

"The petitioners contend among other things that the state laws requiring or permitting use of the Regents' prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State's use of the Regents' prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government."

See how "government.... composing official prayers" has been perverted by the athiests of the ACLU and their Democrat brethren to the sick attack on American tradition and values (and even the Boy Scouts!) that we have today? Kids are being sent home for wearing crucixes; honors graduates are being told they are not allowed to refer to their religion at graduation; teachers are warned to tread carefully when they get to that part of the Declaration of Independence where it refers to "our Creator". Etc.

It's sick.

90 posted on 12/16/2004 5:11:26 PM PST by Lancey Howard
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To: Paleo Conservative

91 posted on 12/16/2004 5:15:48 PM PST by JLO
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To: FBD

Thanks for your kind reply.


92 posted on 12/16/2004 8:06:21 PM PST by Lancey Howard
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To: Ready4Freddy
Poor scholarship on the part of the ones doing the accepting, I would think.

Maybe, maybe not. It would seem the aclu and their fellow travelers have glommed onto Black's language because it serves their purposes much better than the earlier(1878?) decision. Fact is, the 1878(?) decision cited the "separation" language almost as an aside it seems. In any case, if I were interested in taking down the church and its positive influence on our society/culture and I needed to make a choice between the two, I would have chosen Hugo Black's language. In fact a non-lawyer might interpret the 1878 language as almost stating there can be no total separation between church and state.....didn't it?

FGS

93 posted on 12/16/2004 8:21:18 PM PST by ForGod'sSake (ABCNNBCBS: An enemy at the gates is less formidable, for he is known and carries his banner openly.)
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To: kidd; KoRn; thelastvirgil; wolf24

Thanks for reading and for your nice words.


94 posted on 12/16/2004 8:31:08 PM PST by Lancey Howard
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To: Lancey Howard
Some good points on your last two replies.

See how "government.... composing official prayers" has been perverted by the athiests of the ACLU and their Democrat brethren...

With the aid of hand-picked judges and a squad of cheerleaders in the Old Media, AND I suspect more than a handful of moles in every institution in the country. I don't know how they operate but I would guess their MO is to scout out weak spots in the system to attack; set a precedent, then move on to the next mark. Sleazy ba$tard$!

FGS

95 posted on 12/16/2004 8:38:49 PM PST by ForGod'sSake (ABCNNBCBS: An enemy at the gates is less formidable, for he is known and carries his banner openly.)
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To: ForGod'sSake

Thanks for your interest in this topic and for your kind words.
These next couple of years are going to be mesmerizing for us political junkies. Bush and the Republicans have it all, and I sure hope they realize they have a once-in-a-lifetime opportunity.


96 posted on 12/16/2004 8:45:23 PM PST by Lancey Howard
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To: Lancey Howard
Bush and the Republicans have it all, and I sure hope they realize they have a once-in-a-lifetime opportunity.

Tempered with the reality they are fighting the devil himself. I've got a theory, well more of a suspicion really, regarding the roughly half of the population that doesn't bother to vote. I would hesitate to even venture a percentage, but a lot of 'em will tell you that it doesn't seem to make any difference which party gets elected, nothing ever really changes. Now, if the Pubbies were to make a hard right turn, would they not likely retain their base, AND begin adding some of the non-voting public to their rolls because they will begin to see a distinct difference between the social, er, Dims and the Pubbies? See in the Pubbies a party that is truly conservative and stands firmly on the side of the traditional values our country was founded upon. Would that send the rats over the edge or what???

FGS

97 posted on 12/16/2004 9:21:32 PM PST by ForGod'sSake (ABCNNBCBS: An enemy at the gates is less formidable, for he is known and carries his banner openly.)
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To: ForGod'sSake
Would that send the rats over the edge or what???

Har! I think they are already hanging by their fingernails after the last election.
But yeah, I want to stomp on their fingers.

98 posted on 12/16/2004 9:27:30 PM PST by Lancey Howard
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To: Lancey Howard

Excellent article, well worth the read. You write clearly, succinctly, and with a welcome undercurrent of humor. Must have been a fine, fine university you attended ;-}. I look forward to more articles from you. If you have a ping list, please add me to it.

Here's a link to a collection of Jefferson's comments on the subject of separation of church and state.

http://members.tripod.com/~candst/tnppage/qjeffson.htm

Look at the context of Jefferson's comments in his letter to the Danbury Baptists:

Believing that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church and State (Letter to the Danbury Baptists, 1802).

***

The "wall of separation between Church and State" has been created already by the Constitutional provision that Congress shall "make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Free. Exercise. Thereof.

MERRY CHRISTMAS, Lancey Howard.


99 posted on 12/17/2004 9:14:23 PM PST by ntnychik (Proud member of the Bush-uoisie)
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To: Lancey Howard

I was happy playing this for political usage in in 2002 and 2004.

But, you can only play this out for politics so long.

The time for using it for political gain is over. The time for change has come.

Use the nuclear option if that is what it takes.


100 posted on 12/17/2004 9:19:33 PM PST by rwfromkansas
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