by John Hawkins | March 3, 2005 12:19 am
There has been a lot of talk about the “nuclear option” of late. What is the “nuclear option” you may ask? Here’s an excellent explanation from a column at the New Yorker:
…“The Founding Fathers knew how to create a supermajority requirement when they wanted to,” (Orrin Hatch) told me. “They did it with amending the Constitution, they did it with ratifying treaties, which both require two-thirds of the Senate. And just a few lines below that they said ‘advice and consent’ on judges—no supermajority requirement. By using filibusters on the judges, the Democrats have essentially imposed a supermajority requirement, and we are entitled to stop them. This would not affect filibusters on legislation, which could still take place.”
“…Changing the Senate’s rules on judicial filibustering was first addressed in 2003, during the successful Democratic filibuster against Miguel Estrada, whom Bush had nominated to the United States Court of Appeals for the District of Columbia Circuit. Ted Stevens, a Republican Senate veteran from Alaska, was complaining in the cloakroom that the Democratic tactic should simply be declared out of order, and, soon enough, a group of Republican aides began to talk about changing the rules. It was understood at once that such a change would be explosive; Senator Trent Lott, the former Majority Leader, came up with “nuclear option,” and the term stuck.”
“…Although more than two hundred of Bush’s nominees were approved by the Senate in the past four years, Democrats used the filibuster to stop ten appellate-court choices. As a result, some Republicans are pushing to alter the Senate’s rules so that a simple majority could cut off debate on judicial nominees. With the Senate now split fifty-five to forty-four (with one independent) in favor of the Republicans, the change could render the Democrats almost powerless to stop Bush’s choices, including nominees to the United States Supreme Court.”
Everybody have a solid grasp of the “nuclear option” now?
Good, then let me be the first to say that the GOP has almost nothing to lose by going forward with the nuclear option….well, let me rephrase that: Robert Byrd and Ted Kennedy might not be quite as enthusiastic when they wave to Chuck Hagel and Susan Collins as they pass by in the halls, but that’s it.
Let me quickly address the two incredibly unconvincing reasons why Republicans are often told that they shouldn’t pursue the nuclear option, even if they have a Constitutional right to do so.
#1) The Democrats won’t cooperate with the Republicans on anything in the Senate if the GOP uses the “nuclear option!”: And this will change the current state of affairs in what way? Just look at the biggest piece of the President’s domestic agenda: Social Security. How many Democrats in the Senate are cooperating with George Bush on Social Security? None, right? The second “big change” Bush had been talking about pushing this term was flattening out the tax system. How many Democrats are going cooperate with him on that? None, right?
The Democrats aren’t cooperating with Republicans on anything much of significance as it is, so what difference does it make if they publicly declare that they’re throwing a tantrum and blocking everything Bush sends down? Who does that hurt? Not the taxpayers who are generally lucky when the government is tied up in gridlock. Not the Republicans, who’ll suddenly have a great campaign issue for 2006, “We Republicans wanted to be bi-partisan, but the Democrats insist on being obstructionists.” Let ’em do it and we’ll see if the GOP can get up to 60 seats in 2006 at which point the Democrats will become almost completely irrelevant in the Senate anyway.
#2) Well, what happens when the Democrats are back in charge some day?: Yes sadly, the Democrats will likely control the White House & the Senate again and if they want to ram some Ward Churchill clone through, Republicans may not be able to stop them.
However, given how radical the average liberal judge is these days, I’m not sure it makes any difference. We already have the 9th Circuit Court claiming the Pledge of Allegiance is illegal and half the Supreme Court ignoring the Constitution and making decisions based on foreign law.
In other words, if we end up with the “Honorable Judge Michael Moore” one day, how would his rulings be all that different from ones made by Supreme Court Justice John Paul Stevens? Sure, Stevens might be able to give a bit more eloquent explanation of why he decided to ignore the Constitution and make a ruling based on his liberal ideology, but in the end, I bet you’d see 90% overlap in the decisions made by “Judge Moore” and Judge Stevens.
Also, keep in mind that if the GOP doesn’t use the “nuclear option,” that doesn’t somehow preclude it from ever being used. Who’s to say that when the Democrats get back in power some day that they won’t use the “nuclear option” themselves now that they understand it’s possible? You think the same Party that has Howard Dean running around the country saying, “I hate the Republicans and everything they stand for…” is going to get all upset about making the “other guys” angry like John McCain and Arlen Specter? Give me a break!
So let’s pull the trigger on the nuclear option the next time the Democrats try an unconstitutional filibuster and then the Dems can stamp their feet and throw a tantrum because they’re not getting their way for as long as they want. Republicans aren’t in Washington to make pouty Democratic Senators happy, they’re up there to do what’s right for this country and it’s essential that we put more judges into play who respect the Constitution and believe in judicial restraint, especially on the Supreme Court.
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