Testing A Theory: Souter & The Nuclear Option

When Bush was in office and the GOP had the power to kill the judicial filibuster via the nuclear option, they chose not to do so, despite the fact that several lower court conservative judges were never seated as a result of that decision.

This was another one of those fault lines between conservatives across the country and the Republican Establishment. One of the primary arguments we heard from the Establishment back then was that we didn’t want to give that option up, just in case the GOP were ever back in the minority. However, conservatives pointed out that the Republican Party wouldn’t ever actually filibuster a Democratic Supreme Court Justice even if they ended up out of power.

For example, here’s an excerpt from one of the many posts I wrote on the subject from May of 2005,

From a conversation I had yesterday morning with another blogger on instant messenger, the chat was edited just a bit for clarity’s sake and to clean up the grammar:

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Blogger X: Remind me again why we want to change the Senate rules in a way that would prevent Republicans from blocking liberal nominees in a future, Democrat-majority, Senate. I’m not being facetious…just trying to think through the long-term ramifications.

John Hawkins: Sure! 1) Whether we do the nuclear option or not, they can still do it in the future 2) Republicans would never filibuster anyway (there has been 1 done by us ever) 3) The liberals who get confirmed — like Ruth Bader Ginsberg — are already such radical libs that it wouldn’t make any difference if they put Ted Kennedy in there.

So now, we’re going to get an opportunity to see who was right and who was wrong about the nuclear option.

My theory is that when Barack Obama selects a far left wing judge who doesn’t believe in the Constitution (Saying you believe in a living Constitution is no different than saying you don’t believe in the Constitution at all), Republicans are going to roll over and won’t mount any sort of credible threat to filibuster. How could they after spending years saying it was unconstitutional to filibuster judges?

After that, let’s have another discussion about who’s smarter: the conservatives in fly-over country or the geniuses in DC, who insisted that the Nuclear Option was a terrible idea.

PS #1: The Republican members of the Gang of 14 who sold some of our conservative judges down the river just to get favorable mentions in the press were Lindsey Graham, Olympia Snowe, Susan Collins, John McCain (lost Presidency), John Warner (retired), Mike DeWine (lost), & Lincoln Chafee (lost and changed parties). If you’re wondering if their decision makes sense politically, the record you see there is not exactly a ringing endorsement of their judgment.

PS #2: Although I utterly despise John McCain, one of the biggest arguments I ultimately made in favor of conservatives backing him was the importance of the Supreme Court.

From my column, Why You’re Going To Vote For John McCain In November And Like It!

Next up is judges. John Paul Stevens is 87 years old. Ruth Bader Ginsburg is 74 and has had cancer. Does either of those two liberals make it through the next four years without retiring? That’s no small issue, because the court is currently split with 4 conservatives, 4 liberals and a moderate. That means a number of important cases, including Roe v. Wade, will probably be decided once and for all by the Supreme Court appointments of the next President of the United States. May God forgive us if we condemn a million plus children a year to death by abortion because we’re angry at John McCain.

Incidentally, Souter is a vote for Roe v. Wade. If McCain were picking a replacement for Souter, chances are it would have led to Roe v. Wade being overturned. Of course, there’s no guarantee that would be the case even if McCain were dying to put in an originalist — because with so many Dems in the Senate, McCain would have had to select a conservative with impeccable credentials, but almost no legal record on the bench to get him in — and people like that have a history of moving leftward on the court. Still, McCain would have had a decent shot of pulling it off. Instead, we’re going to end up with another far left-wing ideologue on the court. That’s not good news.

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