GO NUCLEAR! (Response to NRO Editorial)

16 December 04 | Lancey Howard

[Lancey Howard]

The editors at National Review Online have opined that the Republicans must resist the temptation to change the Senate rules (which Republican Senators believe they can do by a simple majority) to prevent filibusters of judicial nominees. This threat to change the rules has been referred to as the "nuclear option".

(The NRO editorial and the accompanying Free Republic thread can be found HERE.)

The NRO editors believe that it would be wiser for Republicans to play the "Democrats are obstructionists" card during the political campaign season and hope that the folks who comprise the malleable "middle" (the clueless "undecideds" like the people on the street who get interviewed by Jay Leno) save the day for the rest of us by taking their squishy "rage" out on the Democrats. No thanks.

THE SLIPPERY SLOPE

First of all, let's sum up how we got to where we are today and where we will inevitably end up unless something (the "nuclear option") is done about it.

For the first 200 years of our nation's existence, the vast majority of Presidential judicial nominees were confirmed after legitimate "advice and consent" hearings and an up-or-down vote. Not a whole lot of public attention was even paid to lower-court nominations and most were confirmed by the Senate (regardless of party alignment) with little fanfare or controversy. Even Supreme Court nominations, while obviously generating considerably more interest, were largely considered done deals, occasional burps like LBJ's Abe Fortas notwithstanding.

Then, in the 1980s, everything changed.

During the Robert Bork confirmation hearings the Democrats devised and unveiled the smear tactic now known colloquially as "Borking". Over the next fifteen years or so, the Democrats fine-tuned and expanded this "art of the smear". At one point they conducted what was for all intents and purposes an inquisition of Supreme Court nominee Clarence Thomas. Thomas himself referred to his "Borking" by the Democrats as a "high-tech lynching". Indeed it was. Fortunately, the Democrats' attempt to destroy Thomas failed and he was ultimately confirmed. It was also fortunate that the Democrats had not yet "progressed" to where they are today.

Fast forward a few years and today we see that the Democrats are filibustering any Republican nominee who appears to take the United States Constitution seriously. And they are doing so routinely!

PICK YOUR CLICHE

"The toothpaste is out of the tube".... "The genie is out of the bottle".... pick your cliche; the bottom line is that after 200 years of working just fine, the Constitution of the United States has been irreversibly perverted by the Democrats. The 200-year tradition of Senate "advice and consent", as envisioned by the Founders and set forth in the Constitution, is gone forever.

The Democrats are fully aware that as a consequence of taking the drastic step of routinely filibustering judicial nominees, virtually every nominee to a federal bench who is sent up by future Democrat Presidents (and there will likely be some, like it or not) will be turned away by the Republicans as a "liberal judicial activist". Tit-for-tat. What goes around comes around. What's good for the goose is good for the gander. Etc. Pick your cliche.

RECESS APPOINTMENT MERRY-GO-ROUND

So here we are. It's a whole new world for the judiciary and it is a world where appointments to federal benches, including the Supreme Court, will be primarily recess appointments. It's the inevitable bottom of the slippery slope and if we are not there yet we are closing in fast. As the current lifetime appointments retire or die off, the various federal benches (including the Supreme Court) may as well have turnstiles installed as each new President packs the court with his own recess appointments (which last only for the duration of a Congressional term) and the previous President's recess appointments go home. "Advice and consent" be damned. That stuff is obsolete.

This will eventually lead to a situation where in times of a Republican Presidency the courts will be loaded with "strict constructionists" who take the Constitution seriously and in times of a Democrat Presidency, with liberal activists who make rulings based on the chic political correctness of the day. (The Constitution is a "living document" don't you know. If it wasn't, it would include a process for amendment..... Oh, wait....)

Every time there is a switch in the party that controls the Presidency (resulting in the courts being once again turned upside down), the motions and the lawsuits will rain down like cats and dogs and reversals will be the rule of the day. The judiciary branch will be in a constant state of utter chaos.

Congratulations, Democrats.....

We will soon arrive (if we have not already arrived) at a point where the only way a nominee of any consequence will ever get confirmed to a lifetime appointment is if a President can get 60 votes in the Senate (enough votes for closure against a filibuster). This will normally mean a President must have a Senate comprised of at least 60 members of his own party. History shows us that this is a very rare situation.

But imagine that this rare situation someday comes to pass. The Supreme Court, filled with recess appointments, could then be filled with NINE fresh lifetime appointments. Now imagine that the lucky President who finds him or herself in such a position is some future version of Hillary Clinton. (Roll that one around in your head for a minute.... carefully.)

THE "NUCLEAR OPTION"

On the other hand, there is the "nuclear option". Unfortunately, the "nuclear option" appears to be the only option at this point. The next four years are likely to provide an historic opportunity for a conservative President, George W. Bush, to shape a Supreme Court comprised of a few more "strict constructionists"; a Supreme Court which values the rule of law, the separation of powers, and American tradition.

This opportunity must not be squandered.

As for the soon-to-be-outraged Democrats? Well, is there really any doubt that the party that invented "Borking" and has beaten the process down to the disgraceful low-point we now have would "go nuclear" if the shoes were on the other feet? Please.... OF COURSE they would.

[Lancey Howard]

Thanks for your comments!

Regards,
LH

[mull]

I agree wholeheartedly with the objective, but I think we should be framing this as the "constitutional option" as opposed to the "nuclear option". There has always been a negative connotation associated with anything "nuclear" though I'd love to see that word associated with Fallujah and a few other terroristr hot spots. Ending the filibuster of federal judges and presidential nominees is simply an effort to uphold the powers of the President as set forth in the U.S. Constitution.

[Lancey Howard]

One area I am looking forward to seeing addressed by a new Supreme Court is the mythical "separation of church and state". It is long past due for this lie to be put to rest.

Over the past twenty-five years or so the sneaky, athiest scumbags of the ACLU and the Democrat Party have taken advantage of the ignorant rabble (with great help from their allies in the rapidly-fading "old media") by fabricating a "separation of church and state" (based on an old throwaway line from Ku Klux Klanner Hugo Black) and then trying to convince them that it's in the First Amendment somewhere. It is, of course, not in there at all.

Just for reference purposes, here's the First Amendment. It tells Congress what kind of laws it cannot make. That's all it does. There's nothing in here about "separation of church and state" (as anybody with at least the literacy and IQ of Jethro Bodine can see):

AMENDMENT I

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

[thelastvirgil]

Excellent post, and so, so true. We can only hope for Sen. Frist to suddenly grow a pair along about early January.

I hold out little hope of that happening, though. Our paid reps are such weaklings, it makes me sick.

[AmericaUnited]

It's time to go to the mattresses! Enough of the weak, gutless, spineless routine!

[Ready4Freddy]

You need to bone up on your history. Justice Black is not the source of that phrase, nor was he the first to use it in a SCOTUS opinion.

PS - the 'nuclear option' doesn't refer to a simple change of Senate rules.

...by fabricating a "separation of church and state" (based on an old throwaway line from Ku Klux Klanner Hugo Black)...

[Ready4Freddy]

Over 200 of W's nominations have been confirmed, ~10 have been blocked.

Playing fast & loose w/ the facts doesn't help your case.

Fast forward a few years and today we see that the Democrats are filibustering any Republican nominee who appears to take the United States Constitution seriously. And they are doing so routinely!

[Buckhead]

I would like to see them force the dems into a for-real, sho-nuf filibuster that dragged on for weeks or months until victory is obtained and the enemy destroyed. They have only had sissy little pretend filibusters as a sop to conservatives up to now, The dems would loose the PR war over the filibusters as it dragged on and on, and you wouldn't have all this hand wringing over whether to "go nuclear." Once we kick their ass, if we decide we don't like winning, we can always go back to losing again.

[MeekOneGOP]

If Reid and gang continue to filibuster them, I'm game!

GO NUCLEAR! (Response to NRO Editorial)

Excerpt:

On the other hand, there is the "nuclear option". Unfortunately, the "nuclear option" appears to be the only option at this point. The next four years are likely to provide an historic opportunity for a conservative President, George W. Bush, to shape a Supreme Court comprised of a few more "strict constructionists"; a Supreme Court which values the rule of law, the separation of powers, and American tradition.

This opportunity must not be squandered.

As for the soon-to-be-outraged Democrats? Well, is there really any doubt that the party that invented "Borking" and has beaten the process down to the disgraceful low-point we now have would "go nuclear" if the shoes were on the other feet? Please.... OF COURSE they would.

Please let me know if you want ON or OFF my General Interest or Texas ping list!. . .don't be shy.

[MeekOneGOP]

Thanks for the ping!

[Do not dub me shapka broham]

No problem.

[Do not dub me shapka broham]

Sounds like a plan!

John Kerry:

I had one of those, once.

(Looks across table, at wife, Theresa Heinz. Hangs head in shame.)

[Congressman Billybob]

My national column, which will go out the electronic door tomorrow, will deal with this subject. It was instigated by yesterday's thread on the NRO editorial, which also frosted your Christmas cookies.

I take the same position that you do, though with a slightly different approach. Bottom line: I agree that the nuclear option should be employed asap in January when the new Senators have been sworn in,

Cordially,

Congressman Billybob

Click for latest, "Should the Iraqi Election be Delayed?"

[Bahbah]

Pretty darn good essay, IMHO. I would fix this: "(enough votes for closure against a filibuster)" by changing "closure" to "cloture".

[NeoCaveman]

The editors at National Review Online have opined that the Republicans must resist the temptation to change the Senate rules (which Republican Senators believe they can do by a simple majority) to prevent filibusters of judicial nominees. This threat to change the rules has been referred to as the "nuclear option".

No wonder Ann Coulter calls them "girlie men"

[international american]

I will give you my opinion. This is a first rate essay !
You didn't waste words, and proved your case with pure reason. This was as well written as any I have come across this year. BRAVO!!

[kidd]

I read the NRO article and disagreed with it.

OTOH, your response is spot on.

You brought up some forethought that I hadn't considered yet. You've changed my mind about recess appointments - they are clearly not the answer.

[international american]

The ACLU is a scourge on the American landscape. Now, according to a segment on Fox News, George Soros has announced that he is pumping millions of dollars into the coffers of the ACLU. This is not welcome news!

[MeekOneGOP]

VERY GOOD commentary. Thanks for posting. :^D

[derheimwill]

Wait and see. I don't think they have the er... fortitude to do this. They never even demanded a real filibuster. These were "Gentlemen's Filibusters." They were allowed to do other business and come back to the filibuster later. Either it's a filibuster or ya don't come back.