Up or Down

By Charlie Cook

December 21, 2004

At some point in the next few months, Senate Republicans will decide whether to exercise the so-called "nuclear option," which would end the use of filibusters to block judicial nominees.

Fights over presidential appointments to the federal bench are nothing new. Two of the most notable involved President Nixon's failed attempts to get Clement Haynsworth and Harrold Carswell confirmed to the Supreme Court. But over the last dozen years, these battles have become incredibly acrimonious. They have created an atmosphere in the Senate that is as bitter and poisonous as the House's was in the mid-to-late 1980s.

To invoke the nuclear option, Republicans would get a ruling from the chair that filibustering a judicial nomination is unconstitutional. A vote to uphold that ruling would require just 51 votes -- not the 60 it takes to break a filibuster. With 55 Republican senators in the next Congress, plus Vice President Dick Cheney in the chair -- to vote in the unlikely event of a tie -- the ruling would undoubtedly be sustained. Needless to say, the vast majority of Republicans would support such a move to end judicial nomination filibusters, and virtually all Democrats would likely oppose it.

The tactic of filibustering judicial nominees is relatively new. The first highly publicized incident was the Republican filibuster of President Johnson's nomination of Supreme Court Justice Abe Fortas to become chief justice. Ultimately, Johnson withdrew the nomination.

During the current administration, Democrats have filibustered 10 judicial nominations. Meanwhile, the Senate has confirmed 204 nominees; 15 other nominations either were withdrawn or are still pending, according to figures compiled by The Washington Post.

Republicans are quick to express outrage that President Bush's judicial picks do not always get up-or-down votes on their merits on the Senate floor. But it's worth recalling that the Republican-controlled Senate Judiciary Committee refused to even hold hearings on 62 of President Clinton's judicial nominees. Indeed, some of the same Republicans who now decry Democratic tactics led the effort to block consideration of Clinton's nominees.

It was wrong when Republicans blocked votes on Clinton's judicial nominees a decade ago, and it is wrong that Democrats are returning the favor today. Senators should base the decision on the use of the nuclear option not on whom it will benefit today but on what is best for the Senate.

Putting the Senate's interests first would mean expediting and ensuring a vote on each nominee, at least in the Senate Judiciary Committee. Nominees approved by the committee should get a vote on the floor. Today, this approach would help Bush and his party. A decade from now, it might very well benefit Democrats.

Last April, Sen. Arlen Specter, R-Pa., introduced Senate Resolution 327, which, if passed, would have required the Judiciary Committee, which he is slated to chair in the next Congress, to hold hearings within 30 days of receiving a nomination, and to act on the nomination within 30 days after the hearings.

Under Specter's proposed resolution, if a nomination won committee approval, the full Senate would be required to act within 30 days after the nomination was reported out of committee. The resolution allowed for extensions of 30 days both in the committee and on the floor, if needed.

We have something in this country called "elections." Bush won re-election, and Republicans gained four seats in the Senate. The prospect of either the nuclear option or the Specter resolution (which I think is the better approach) sets Democratic stomachs churning.

Some predict that mandating full Senate votes on all judicial nominees who make it out of committee would ultimately lead to a Supreme Court that would overturn Roe v. Wade, the landmark 1973 decision recognizing a constitutional right to abortion. Maybe that's correct; maybe it's not. But Republicans did win the 2004 election. And if they choose to nominate and confirm nominees who would vote to overturn Roe, and if Democrats are unable to beat these nominees on up-or-down votes, then that is the way it will be.

Some observers argue that if Roe were overturned, the fallout would destine the Republican Party to be a minority party for a generation or two. That is entirely possible. If Republicans want to pay their money and take that chance, fine, but something has to be done to refocus the fight over judicial nominees on the merits of each nominee. Presidential appointees ought not be left twisting in the wind as Clinton's were in the past and as Bush's are today.


By Charlie Cook

December 21, 2004

http://www.govexec.com/oversight/on-politics/2004/12/up-or-down/18264/