JUDICIARY
No Nukes!
The battle over judicial nominations is heating up, with the Senate right wing
getting louder about detonating the "nuclear option" in order to push through
President Bush's radical, activist judicial nominations. In the latest furor,
conservatives are trying to overturn the tactic known as the filibuster, which
has been in the Senate rules since the early 1800s
(http://www.brookings.edu/views/op-ed/binder/20030525.htm) . The filibuster has
a long history in the Senate. As John Dean writes, the filibuster exists "to
ensure that the majority party's nominees
(http://writ.news.findlaw.com/dean/20050408.html) have sufficient bipartisan
appeal." Even Orrin Hatch, the former chairman of the Judiciary Committee, has
said the filibuster is " one of the few tools that the minority has
(http://judiciary.senate.gov/member_statement.cfm?id=744&wit_id=51) to protect
itself and those the minority represents." It's also designed to force
compromise. Going nuclear is dangerous maneuver which would overturn the basic
power of checks and balances.
GOING NUCLEAR: If at least 41 senators strongly oppose a bill or nominee, they
can decide to indefinitely extend debate, blocking a final vote on the issue.
That's a filibuster. All it takes is 60 senators to vote the debate is over, and
the bill/nominee is sent to the floor. What's the "nuclear option"? Right-wing
senators want to change the long-standing rule so a simple majority can end the
debate (meaning they could easily stop all filibusters). To change Senate rules,
however, you have to have two-thirds of your colleagues behind you. (This
ensures one party can't politicize Senate procedure.) In this case, the right
wing doesn't have the required 67 senators on its side. Thus, it's time for
procedural trickery known as the "nuclear option." Once the next filibuster is
set in motion, probably over one of the more extremist judicial nominees, a
right-wing senator wanting to activate the "nuclear option" would object,
"claiming that the filibuster cannot be used on a judicial nomination." The
Senate leader would rule in his favor. That ruling would be appealed, and only a
simple majority would be needed to uphold that ruling which, in effect, would
change the rule itself. Procedure averted, rule changed, and it all happens
without needing two-thirds on your side. (Thanks to People For The American Way
(http://www.pfaw.org/pfaw/general/default.aspx?oid=17707) for the explanation.)
IT'S ADVISE *AND* CONSENT: The Constitution says the president "shall nominate,
and by and with the advice and consent
(http://www.usconstitution.net/const.html) of the Senate shall appoint" judges.
The right wing is looking to strip the "consent" from that process. President
Bush is already complicit in this attempt: when the Senate fails to confirm his
nominees, he simply renominates them. Even worse, he has a history of bypassing
the Senate altogether and simply installing judges on the bench during a recess.
Conservatives in the Senate would strip their role in checks and balances.
Claims that moderates and liberals in the Senate are being obstructionists,
however, are belied by the record: the Senate has confirmed 204 of the
president's 214 trial and appellate judicial nominees.
THE FIRST PRECEDENT: Many conservatives claim using a filibuster to block a
judicial nominee is unprecedented. They may need to consult their history books.
In fact, as the Los Angeles Times points out, "In fact, in 1968, Senate
Republicans used a filibuster to block President Johnson's nomination of Abe
Fortas
(http://seattletimes.nwsource.com/html/nationworld/2002231120_filibuster05.html)
to be Supreme Court chief justice."
THE FRIST PRECEDENT: Speaking of precedents, Senate Leader Bill Frist himself
took part in an attempt to filibuster a judicial nominee. On 3/9/00, Frist took
part in a filibuster of Richard Paez, President Clinton's nominee to the Ninth
Circuit. (He tried to spin this vote last year, claiming the filibuster was for
"scheduling" purposes
(http://frist.senate.gov/index.cfm?FuseAction=Speeches.Detail&Speech_id=121) ,
but a press release by former Senator Bob Smith titled " Smith Leads Effort to
Block Activist Judicial Nominees
(http://www.americanprogressaction.org/atf/cf/%7b65464111-BB20-4C7D-B1C9-0B033DD31B63%7d/SMITH_113004.PDF)
" exposed his disingenuousness.) In reality, conservatives led at least six
filibusters during the Clinton years.
BLUE SLIPPING: Take right-wing protestations that every nominee deserves a floor
vote with a giant grain of salt. During the Clinton years, conservatives
employed a bag of legislative ploys to block judicial nominations from coming to
a vote. In 1994, for example, Sen. Orrin Hatch added language to the Senate
rules for confirming nominees. Known as the "blue slip" policy, it allowed a
single senator (http://www.pfaw.org/pfaw/general/default.aspx?oid=9286) to
secretly block nominations from leaving committee for a vote; compare that to
the 41 required to keep a filibuster going. Using this method, Senate
conservatives were able to block more than 60 judicial nominations. (After Bush
took office, Hatch abandoned this procedure.)
THERE ARE OPTIONS: There is an easy fix to President Bush's judge problem: Stop
nominating far-right, activist ideologues with extreme views not shared by many
mainstream Americans. According to Sen. Patrick Leahy (D-VT),"What is driving
... the Senate toward conflict is this White House's efforts to create
unnecessary confrontation
(http://seattletimes.nwsource.com/html/nationworld/2002231120_filibuster05.html)
over judicial nominees.... The president insisted on renominating troublesome
and divisive choices, rather than working with us to find more consensus
nominees who would be fair judges." The Washington Post writes that President
Bush has many valid options
(http://www.washingtonpost.com/wp-dyn/articles/A35726-2005Apr7.html) to get his
nominees accepted: "He could, as Judiciary Committee Chairman Arlen Specter
(R-Pa.) recently said, consult with Democrats on nominations.... He could pick
nominees who are qualified and to his ideological liking and yet immune to
plausible partisan challenge; even in a highly charged atmosphere, many such
people exist. If he showed this kind of leadership, his demand for up-or-down
votes would carry far more weight." |
