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Going Nuclear
Will the GOP change the filibuster rule for judicial nominees?


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Andrew C. McCarthy

Whither the filibuster? Quite apart from the contentiousness over whether Senator Arlen Specter assumes the chairmanship of the Senate Judiciary Committee, the Democrats’ principal tactic for blocking judicial nominees during President Bush’s first term is also receiving a good deal of post-election attention in the wake of the Republicans’ four-seat net gain in the upper chamber. Of greatest interest now is: Will the GOP go nuclear?

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The question is especially pertinent after Senator Bill Frist spoke at the annual Federalist Society convention in Washington last week. The Senate Majority Leader indicated that he is inclined to support the so-called “nuclear option,” in which the Senate–now with a more muscular Republican margin of 55 to 45 (44 Democrats plus one independent)–would vote to change its procedural rules so that a simple majority (51 senators), rather than the current super majority (60), would be required to bring a nominee’s name to the floor for a decisive vote.

Had such a rule been in effect for the last four years, it is a good bet that all of the Bush nominees would long ago have been confirmed and sitting on various federal appellate courts throughout the nation. Thus, a GOP push for such a new rule entails certain political risk: Democrats and their mainstream media allies would scream bloody murder.

Nevertheless, the new rule appears attainable right now, and here again Senator Specter is in the eye of the storm. He has been a sharp critic of the filibuster. Although the senator is sometimes wont to line up with other “moderate” Republicans to derail legislation favored by conservatives, his stated position on filibusters–coupled with the sudden need to appease conservative critics if he is to realize his desire to chair the Judiciary Committee–means Republicans probably have enough votes to secure the rule change even with expected defections from Senators Lincoln Chafee, Susan Collins, and Olympia Snowe.

Given that they probably can do it, the next question is: Will they? Here, what appears to be an unduly rosy view is offered by Melanie Kirkpatrick in Monday’s Wall Street Journal. Stressing Senator Tom Daschle’s recent defeat in South Dakota, Kirkpatrick contends that the GOP caucus will probably never have to “walk the walk” on the rule-change threat. Daschle’s obstructionism, she argues, was a key element in what became a razor-thin victory for challenger John Thune. Thus, she infers that there may be no need to eliminate the filibuster by rule because other obstructionist Democrats will now be cowed into abandoning the tactic when, as anticipated, Supreme Court seats soon start coming open. Don’t bet on it.

What made the South Dakota election important was Daschle–his personal power in the Senate. The state itself has never been a bellwether, such that its voters’ dispositions can reasonably be said to reflect broad national trends. Even if they could, moreover, Daschle came very close to winning, and his loss was much less about any single issue than about the overall impression that he had for too long pulled the wool over South Dakotans’ eyes–pretending at home to be a bridge-builder with a conservative streak, while actually operating in Washington as a fierce partisan of the Democratic Left.

Concurrently, Kirkpatrick’s theory omits consideration of a central concern: money. Nationally, Democrats are in the thrall of trial lawyers, civil-liberties activists, and the pro-choice lobby. These interest groups are no dummies–they fully appreciate that much of what they want to bring about as policy (e.g., abortion-on-demand, affirmative action, according constitutional protections to foreign enemy combatants) is unpopular with voters, while much of what is popular with voters (e.g., tort-reform) is anathema to them. They are reliant on activist judges willing to stretch the Constitution as a sheath that gives their preferences the cover of “fundamental law,” insulating them from challenge at the ballot box. For them, then, there is no issue in national politics more crucial than the composition of the federal bench. It is, bluntly, the whole ballgame.

The Democrats, furthermore, should hardly be expected to fold up their tents. Much rightly is made of the fact that President Bush received more popular votes than did Ronald Reagan, who garnered the previous historic high of 54.5 million in his 1984 reelection. But this has obscured the fact that, despite losing, the president’s Democratic opponent, Senator John F. Kerry, also received more popular votes than the ‘84 Reagan tally.

This was no landslide. The Democrats are still a major force to be reckoned with. The thought that they will simply surrender a tactic that remains their best hope for blocking the president’s nominees and pleasing their core constituencies is a pipedream. If Republicans want to make good on President Bush’s commitment to staff the federal courts with jurists who believe that judicial power has real, objective limits in a democracy (see), the Senate rules will have to be changed.

Ending the filibusters would not guarantee that the president’s judicial nominees were confirmed–far from it. As noted above, the current 55 to 45 margin is the GOP’s partisan advantage; it is not necessarily an ideological advantage once an accounting is made for defections from each side on any particular issue. Nonetheless, at least the nominees would get an up-or-down vote, and their quality has been such that they are extremely likely to be confirmed.

Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.



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