High Court at Heart of Filibuster Spat
The spat between Senate Democrats and Senate Majority leader Bill Frist over changing the number of votes required to end a filibuster is not about dumping the handful of Bush's retrograde judicial picks on federal benches. It currently takes 60 votes to cut off a filibuster and force a vote on a hotly contested judicial nomination. Frist wants to drop the number to 51, or a simple majority. The Senate, and that included every Democrat in it, speedily backed nearly all of Bush's 214 nominees. Those picks generated no bitter political warfare in the Senate because they were not blatantly doctrinaire rightist judicial hardliners.
The same can't be said for Clinton's judicial picks. Senate Republicans used every trick in the Senate rulebook to stonewall many of them. That included using the filibuster tactic that Frist now piously and self-righteously says must go. More than two-dozen current GOP members of the Senate voted more than 200 times to block a final confirmation of a judge.
The real issue behind Frist's ploy is the high court. Despite his public bluster about continuing to soldier forward on the court, ailing Supreme Court Justice William Rehnquist's days are numbered. The rumor is that Bush will pick Antonin Scalia or Clarence Thomas to replace him as chief justice. Bush has called the pair his two favorite judges. The nomination of either one of these ideologically rigid twins will ignite a pitched battle in the Senate. The chief justice plays a pivotal role in shaping and molding judicial opinion, arguments, and philosophy in key cases.
The high court under Chief Justice Earl Warren's tutelage was progressive, humane, and flexible. It protected and expanded rights and liberties, and broke down racial and gender barriers. The high court under Rehnquist's tutelage has been doctrinaire, contentious, and mean spirited. It has done everything possible to reverse the civil liberties, civil rights, and gender gains and protections of the Warren court.
Civil rights, civil liberties, women's and environmental groups would furiously pound on Senate Democrats to show gumption and oppose the nomination of Thomas or Scalia. Their only weapon to stop one of them from ascending to the top of the judicial heap is the filibuster. Tapping either one of the two for chief justice would be only the beginning of the Bush's march toward packing the court with rigid ideologues. Illness or old age could also force one or more of the other justices to step down within the next couple of years.
When Bush attempts to shove another Scalia or Thomas onto the court, and stack the Supreme Court with more conservative ideological hacks, they could wreak colossal damage on civil rights, and civil liberties protections, totally ignore consumer protections, give away the company store to big business and fulfill the long cherished dream of ultra-rightists to topple Roe v. Wade.
Bush appointees could serve decades on the Supreme Court. Those on his short list are all relatively young. Rehnquist has served on the court for 30 years. Their decisions would profoundly influence for good and bad, law and politics in America long after Bush has left the White House.
There are, however, political risks for Bush in the high court game. While it takes only a simple majority in the Senate to confirm a judge that the Republicans have, Democrats if forced to mount a filibuster against their confirmation have the votes to block a controversial pick.
But the battle over the rule change is not solely about making it easier to shove a Bush pick on the bench. A successful filibuster could also breathe life back into a party battered and bruised by the Bush juggernaut and written off by many voters as a beaten and spent party. Even if the Democrats lost the fight, they would send a strong signal that they are still willing to fight hard for political and ideological principles. A confirmation fight would also force Bush and Frist to back up their claim that they aren't trying to stack the Supreme Court with conservative yes-men and women but will pick men and women of ethnically diverse backgrounds who will promote judicial fairness.
Bush also must be mindful of the debacle that befell his father when he picked Thomas to replace civil rights icon, Thurgood Marshall in 1991. It ignited a national firestorm of protest by civil rights and women's groups. During the Senate Judiciary Committee's confirmation hearings, they stormed the Capitol and demanded that Thomas be rejected. Their protests stiffened the spines of Committee Democrats who subjected Thomas to the most intense, and grueling testimony in living memory.
Appointments to the Supreme Court are a high stakes political game. Bush will be under monumental pressure from hard right groups to impose their outrageous partisan conservative litmus test on his picks. That's the line in the sand that Democrats can't cross. If Frist gets his way, though, and the rules are changed, Bush and the GOP will quickly obliterate that line.