Three Mistaken Assumptions That Republicans Make About Democrats And The Nuclear Option

25 Apr, 2005 by John Hawkins

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Lee over at Right Thinking From The Left Coast read the post on pulling the trigger on the nuclear option that was up Friday at RWN and generally agreed, save for one crucial caveat:

“I’m torn on “going nuclear.” I totally agree with John that, morally and intellectually, it’s the right thing to do. The president, no matter who he is or what party he is from, has the power, as specified in the Constitution, to appoint judges. Barring some gross level of incompetence, the president should get his choice. The judges Bush has nominated so far are perfectly qualified for their respective posts, and the only reason the Democrats are going insane over this is because their paymasters in the abortion, trade union, and trial lawyer professions have so much at stake.

That being said, I don’t think I can support going nuclear because there will undoubtedly come a time at some point in the future, when President Hillary and the Democratic Senate are going to appoint some real commie @sshole to the SCOTUS, and the filibuster might be the only option the GOP has for keeping them off the bench. It’s definitely a point of concern, and not something that should be brushed off lightly. If the GOP assumes this power for itself now, are they prepared for the consequences of the Democrats having it at some point down the road?”

From what I’ve seen around the blogosphere, Lee’s objection is probably the one most often cited by conservatives opposed to the nuclear option.

Certainly, I can understand where Lee and other conservatives who worry about that are coming from, but I’m not troubled by this facet of the issue. Let me tell you why:

First of all, since Lee mentioned the Supreme Court, it’s important to remember the stakes we’re playing for here. Judge Rehnquist is one of the “real” conservatives on the Scotus and as we all know, he’s in poor health. Should he step down with the unconstitutional judicial filibuster still in place, we could be in a situation where the court could become MORE ACTIVIST AND LESS CONSERVATIVE despite the fact that we have a Republican President and 55 Republican Senators. This isn’t just about judges like Miguel Estrada & Priscilla Owen being unfairly treated — although they both deserve up and down votes and I would be pleased to have either of them on the Supreme Court (Estrada would personally be my first choice). This is about whether Rehnquist is going to be replaced with a judge like Antonin Scalia or a judge like Anthony Kennedy and, make no mistake about it, this is a choice that could have a huge impact on our country for DECADES.

I’m just saying keep in mind that the importance of who gets on the Supreme Court almost cannot be overstated.

Now, let me hit what I believe are three mistaken assumptions that many conservatives make about the nuclear option.

#1) That the Democrats will get “really liberal” judges in without a Republican filibuster. The problem with this is that the Democrats have had no problem getting “really liberal” judges approved as it is.

For example, what’s the difference between Ruth Bader Ginsberg and — let’s say — Ted Kennedy, supposed to be? They’re both liberals, they both believe in a living constitution, & they both believe in making rulings based on their liberal ideology and then calling it constitutional law. In other words, if you tell me that without the filibuster being around, liberal judges would get even worse than they were during the Clinton years, I don’t believe it.

#2) That Republican Senators would filibuster Democratic judges. Let’s say a nightmare scenario for Republicans occurs and in 2008, we get President Hillary Clinton and 55 Democrats in the Senate. That means that the only way Republicans can stop…I don’t know, let’s say Nancy Pelosi just for the heck of it — from becoming the next Supreme Court Justice is the filibuster.

Well, you have two problem groups of Republicans.

The first is the large group of spineless, wimpy Republicans like Olympia Snowe, Arlen Specter, Lincoln Chafee, Susan Collins, Richard Lugar, Chuck Hagel, & John McCain whose knees buckle at the faintest whiff of controversy. Any and/or all of these Senators are as likely as not to vote with Democrats on any big issue.

But then, you have an even bigger problem group: principled Republicans who’ve been telling anybody who’ll listen that filibustering judicial nominees is unconstitutional. I don’t know how many of them there will be, but there will certainly be a block of GOP Senators who will oppose any Republican filibuster of a Democratic nominee. That’s certainly how I feel about it. If we have a Democratic nominee in 2008, you can count on me to be opposed to a Republican filibuster of their judges based solely on constitutional grounds. If it’s unconstitutional today, it’s going to be just as unconstitutional in 2008.

Between these two groups of Republicans, my guess is that there won’t be any filibusters of Democratic judges. But even if there are….

#3) Don’t believe the Democrats would be as benevolent when they’re in charge. Whether the GOP pulls the trigger on the nuclear option or not has no bearing on whether the Democrats will do so when they take over again. As I explained in #2, I doubt if the Democrats will ever need to stop filibusters to get their judges through (1968 is debatably the only time the GOP has ever filibustered a judge), but if they do, they have proven to be much more disciplined and ruthless than their Senate counterparts in the GOP, particularly when it comes to judges. So if we’re being honest here, we have to admit that it’s entirely possible that the Democrats will use the “nuclear option” if they have need of it.

What it comes down to here is that the judicial filibuster isn’t equally useful to both parties today nor will it be in the future. The judicial filibuster is an unconstitutional tactic that runs counter to more than 200 years of Senate tradition and primarily benefits the Democratic Party. The Republicans need to step up and stop giving the minority party in the Senate the final word on which judges are allowed to be confirmed.