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The "Nuclear Option"

The right's all-out attack on the filibuster could pave the way for extremist nominees to the Supreme Court.
 
 
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A January National Review column by former Senate Judiciary Committee Chairman Orrin Hatch, floor remarks by Senate Majority Leader Bill Frist, and op-eds in the Wall Street Journal make it clear: the right wing is mounting an all-out attack on the 200-year-old tradition of the filibuster in the Senate to clear the way for President Bush's most extreme, ultra-conservative nominees to the federal bench and, eventually, to the Supreme Court. To that end, it's obvious they won't let the truth stand in their way.

Hatch called the use of filibusters in the appointment process "unprecedented, unfair, dangerous, partisan and unconstitutional," and said they created a "constitutional crisis." In fact, it is Hatch and Frist who are courting a constitutional crisis of historic proportions through the proposed use of a parliamentary dirty trick – aptly named "the nuclear option" – to prohibit the use of the filibuster. If successful, they will have eliminated one of the only tools for forcing a majority party that controls both the White House and Congress to engage in bipartisan consultation and cooperation.

Despite vigorous claims of Democratic obstructionism through use of the filibuster, a recent Wall Street Journal /NBC News poll found that Americans favor keeping the filibuster for judicial nominations by 48 percent to 39 percent. Frist and Hatch are attempting to create a crisis out of whole cloth. Even the one piece of political evidence that they and others repeatedly cite, Sen. Tom Daschle's narrow loss to John Thune in last year's election, withers under close scrutiny. As NPR's David Welna, who followed the South Dakota race closely, wrote: "I found only one voter who cited the judicial nominations as a reason for voting against Daschle, and that one was Republican John Thune[.]"

But this has not dampened Republicans' enthusiasm for the "nuclear option," which refers to a narrow majority of the Senate circumventing the Senate's rules and declaring that a simple majority can cut off debate on a judicial nominee. Under the Senate's written rules, 60 votes are necessary to end a filibuster – forcing compromise and curbing extremism. On the weighty matter of changing its own rules, the Senate requires a two-thirds vote to end debate. Permitting a bare majority of the Senate to take the unprecedented step of eliminating the filibuster would eviscerate the Senate's responsibility under the Constitution to provide advice and consent on judicial nominees and to be a check on presidential power.

Choosing "Crisis" Over Consultation

The legacy of last year's bitterly fought elections is a still narrowly divided House and Senate and a president elected with a narrow majority of the popular and electoral vote. Republican leaders of the House and Senate as well as the president in the days after the election spoke of compromise and healing the nation's divisions. Newly elected Senate Minority Leader Harry Reid of Nevada took the president at his word. He called for returning the judicial nominations process to its traditional cooperative route and restoring "advice" to the advice and consent clause through bipartisan consultation on nominations. This is not a radical notion. In 1993, President Bill Clinton sought Hatch's advice and input on potential Supreme Court nominees before making a nomination.

Yet both the White House and Senate Republican leaders have chosen to ignore the outstretched hand of cooperation. Instead, by threatening use of the "nuclear option" on the opening day of the 109th Congress in his "welcome" remarks on the Senate floor, Frist launched a deliberate and pre-emptive assault on bipartisanship. His early belligerence signals Republicans' intentions over the next four years to reject a strategy of seeking consensus on the critical issues facing the nation, and instead try to rule the country from the narrow political base of far-right groups and constituencies.

With the self-sanctimony that only the short of memory can so blithely muster, Hatch argues in the National Review that "[u]nprecedented, unfair, and partisan [Democratic] filibusters ... constitute a political crisis." The truth is that on the issue of blocking nominations, the Senate Republicans' history (and Hatch's own) has been one of obstruction, hypocrisy and lack of responsibility. As conservative columnist George Will recently noted, "Actually, some Republican senators' hearts are about as pure as the driven slush after the treatment they dished out to some of President Clinton's judicial nominees."

During the Clinton administration, Senate Republicans blocked dozens of Democratic nominees with much less open and accountable procedures like secret holds. Fully one-third of Clinton's appeals court nominees from 1995 through 2000 were kept off the bench – many without even a hearing or committee vote – while others were delayed for as long as four years. It is rank hypocrisy for the Republicans to claim that a filibuster creates a constitutional crisis because no final "up or down" vote is held on a nominee when they were willing to prevent many more such votes en masse during the Clinton administration. Republicans blocked over 60 of President Clinton's nominees, often through the actions of just a single Republican senator.

Blaming former Senate Majority Leader Tom Daschle for the judicial stalemate, Hatch ignores the role that Republicans have played in creating the current contentiousness over court appointments. He has declared himself the defender of fairness, bipartisanship and precedent, but he has flip-flopped on the issue of filibusters – defending their use when he was in the minority and leading the campaign to restrict them when in the majority. Hatch's hypocrisy extends far beyond rhetoric. As chairman of the Senate Judiciary Committee he engineered a number of power plays that demonstrate his willingness to change the rules, abandon precedent and prior agreements – essentially to ignore the rule of law – in order to secure unimpeded passage of his agenda.

A Bulwark Against Extremism

Eliminating the filibuster for judicial nominations would also change the nature of the Senate and its role in our constitutional system. The Senate was designed to be the more deliberative body in Congress. The current situation – one-party rule despite a narrowly divided national electorate – demonstrates the wisdom of our constitutional framework of checks and balances.

The Constitution gives the Senate a co-equal role with the president in the appointment of federal judges, who serve in those powerful positions for life. It is the obligation of senators not to function as a rubber stamp for the President's nominees. Senators who act to prevent the confirmation of judges who threaten to undermine Americans' rights and freedoms are simply fulfilling their constitutional obligation.

Given the utter failure of the majority to reach across the aisle to consult and compromise, and the president's decision to pick nominees whose controversial records prevent them from enjoying significant bipartisan support, the filibuster is now virtually the only tool that Senate Democrats have at their disposal to act as a counterweight to one-party rule. As George Will recently wrote, "The filibuster is an important defense of minority rights, enabling democratic government to measure and respect not merely numbers but also intensity in public controversies. Filibusters enable intense minorities to slow the government juggernaut."

Strangely, Hatch argues in his National Review piece that filibusters of judicial nominations are less legitimate than filibusters of legislation or executive branch nominations. Clearly they are different, but he has the difference completely backward: if a demand for 60 votes is legitimate with respect to legislation that future Congresses can revisit or a four-year executive appointment, it is even more appropriate when considering lifetime appointments to the federal judiciary.

Furthermore, the filibuster plays a critical role in preserving the essential fairness of the judicial branch. Unlike the other two branches, the federal courts are intended to be objective and nonpartisan. The filibuster rule prevents a president with a narrow majority in the Senate from appointing partisan justices, or rank ideologues, to the Supreme Court. Revoking this rule would enable a GOP president with a 51-vote Senate majority (or 50 senators plus the Vice President) to appoint Pat Robertson to the Supreme Court, and there would be nothing that the rest of the Senate, or the rest of the country, could do about it.

Finally, while Hatch argues that filibusters of judicial nominations have created a "crisis," the record reflects otherwise. Senate Democrats have used the filibuster judiciously – only blocking the very worst Bush nominees. 204 of Bush's judicial nominees were confirmed in his first term; only 10 were filibustered. The president has now appointed 23.2 percent of all active federal judges and 20 percent of all circuit court judges across the country. The vacancy rate on the federal courts is now the lowest it has been in at least 16 years.

That Hatch and Frist contemplate parliamentary "nuclear war" over such a trumped-up "crisis" illustrates that this maneuver is not about ensuring appropriate action on nominations but rather nothing more than fulfilling Republicans' desire to have absolute, unchecked power in Washington. They want to blast a clear path through the Senate for Bush’s Supreme Court nominees.

It is with respect to the history of judicial filibusters that Hatch and his fellow partisans do the most disservice to the truth – arguing that Democratic filibusters are "unprecedented." According to the Congressional Research Service, prior to the 108th Congress, cloture motions had been filed and cloture votes held on 14 Court of Appeals nominations since 1980. As recently as 2000 cloture votes were necessary to obtain votes on the nominations of both Richard Paez and Marsha Berzon to the Ninth Circuit.

Indeed, Frist was among those voting against cloture on the Paez nomination. William Rehnquist's nomination was filibustered twice, first in 1971 when he was nominated to serve as an associate justice and then again in 1986 when he was nominated to be chief justice. And Republicans successfully filibustered the nomination of Abe Fortas to be chief justice in 1968.

Confronted with these facts, Hatch and others have tried to rewrite history by claiming that the recent filibusters have been the first to defeat nominees supported by a majority of the Senate. The notion that filibusters only "count" if they are successful defies reason. Like any other parliamentary device, some filibusters will succeed while others will fail. Just because Frist's filibuster of the Paez nomination was not successful does not change the fact that he voted against ending debate and used the same tactic that he condemns in Democrats.

In 1994, Hatch defended a Republican-led filibuster on a judicial nomination by declaring that the filibuster is "one of the few tools the minority has to protect itself and those the minority represents." Hatch himself voted with other Republicans to defeat the nomination of Henry Foster to be surgeon general by voting to continue a filibuster against the nominee, even though Foster clearly had the support of a majority of the Senate.

Given their past use of the filibuster and other means to block votes on judicial nominations, it is a remarkable display of hypocrisy for Republican leaders to now suggest that use of the filibuster is unconstitutional.

How can it be constitutional for a committee chair to stop a nominee by refusing to hold a hearing, or for a secret hold by a single Republican senator to prevent a nominee from moving forward, but unconstitutional for 41 Democratic senators to prevent a final vote using a public Senate procedure specifically designed to protect the rights of the minority? It is clear that the answer has nothing to do with the Constitution and everything to do with wielding power.

A Line in the Sand

The Senate since its founding has been a body that depends on comity to operate effectively. If they decide to forego this tradition for narrow political expediency, Republicans cannot expect to enjoy its benefits. In the Senate, Democrats will be forced to employ new and further tactics to obstruct this radical agenda. Further, as Minority Leader Reid warned over the past months, use of the nuclear option itself will rightly spark a conflagration of protest by Senate Democrats in the form of objection to routine business and to traditional means of expediting the Senate's work. Much business in the Senate, on legislation and nominations alike, will grind to a halt.

By so doing, Senate Democrats would be acting to preserve the rights and interests of future Senate minorities. Even more importantly, they would be serving as the last line of defense against extreme Bush nominees who would undermine the rights, freedoms and protections of all Americans.

Ralph G. Neas is president of People for the American Way .