Will GOP 'Go Nuclear' on Judges?

As Democrats continue to prevent up-or-down floor votes on two of President Bush’s appellate court nominees, GOP Senate sources indicate that Republicans will wait for a Supreme Court nomination before they seriously consider resorting to the so-called "nuclear option" to get a conservative confirmed.

The "nuclear option" in Capitol Hill lingo these days means clarifying the rules of Senate debate to ensure that the filibuster cannot be used to block votes on judicial nominees.

The moment for "going nuclear," however, may come as early as this summer if rumors about the possible retirement of either Chief Justice William Rehnquist or Justice Sandra Day O’Connor, or both, prove to be true.

The political brawl to replace the next retiring justice promises to be as ugly and bitterly partisan as the donnybrooks that took place over the Supreme Court nominations of Robert Bork and Clarence Thomas.

A survey of Republican senators by HUMAN EVENTS revealed reluctance to comment for the record on any particular solution to the Democratic filibusters against appellate court nominees Miguel Estrada and Priscilla Owen, or other expected judicial filibusters.

But as events unfold, sources say, Senate Republicans are most likely to exercise all other options, wait until the last possible moment, and then "go nuclear."

Roe, Roe, Roe

Democrats are using the filibuster to block votes on Estrada and Owen-even though both nominees are considered professionally qualified to serve as federal appeals court judges by the liberal American Bar Association. The biggest underlying reason for the Democratic filibusters was made clear by several Democratic presidential candidates at least week’s candidate forum sponsored by the liberal fundraising group Emily’s List (see Capital Briefs): They fear that if Bush names two or more conservative justices to the high court, then Roe v. Wade, the opinion that legalized abortion on demand, will be overturned.

Democratic fundraising relies heavily on pro-abortion interests such as Emily’s List.

Democrats also know that a bloody fight over the issue will bring out millions of dollars in campaign cash for the 2004 cycle. Feminist organizations like Emily’s List and the National Abortion Rights Action League-who saw almost all their preferred federal candidates go down to defeat in the 2002 elections-could raise record sums of money for pro-abortion candidates.

Hatch all but endorsed the nuclear option in an interview with The Hill earlier this month.

First spokesman evaded questions about when and how the nuclear option could be employed.

Four possible strategies have arisen for defeating the Democrats’ filibusters. But only one appears to have any chance of putting filibustered nominees on the federal bench before the 2004 election. That is the "nuclear option," under which the presiding officer of the Senate would rule that Senate Rule XXII, which requires a "cloture" vote of three-fifths of the Senate to end debate on a legislative question, does not apply to judicial nominations, which are not legislative questions. A bare majority of 50 senators would be enough to uphold such a ruling.

Although they played their cards close to the vest, several Senate Republicans, when asked, hinted strongly that a Democratic filibuster against a Supreme Court nominee might trigger it.

Asked twice specifically about the nuclear option, Sen. Saxby Chambliss (R.-Ga.) would only say, "There’s got to be some sort of major explosion to break the logjam. Whatever that calls for."

Senate Judiciary Chariman Orrin Hatch (R.-Utah), whose committee is responsible for sending Bush’s nominations to the Senate floor, deferred to Majority leader Bill Frist (R.-Tenn.) when asked how to deal with the Democratic filibusters. "I think its strictly up to the leader," Hatch told HUMAN EVENTS. "He has my advice, and he’ll have to make the decision."

Other Republican senators and staffers told HUMAN EVENTS that there are reservations within the caucus because the nuclear option, in addition to heightening the Senate’s partisan rancor of late, could also create an ugly precedent of bare Senate majorities muscling unpopular legislation into law.

Conservative Sen. Jeff Sessions (R.-Ala.), however, pointed out that Republicans have no reason to worry, since in recent memory they have not put up a serious fight against even the most extreme Democratic judicial nominees.

"Some of them say, we don’t want to give up the filibuster, but we’re not giving up anything," said Sessions. "We’ve never used it."

For example, Ruth Bader Ginsburg, whom President Bill Clinton appointed to the high court in 1993, was easily confirmed on a vote of 96 to 3. As an ACLU lawyer in 1977, Ginsburg had helped draft a legal report that recommended lowering the age of sexual consent nationwide to 12 years. HUMAN EVENTS was the first to report on her radical legal writings in support of legalized prostitution and pedophilia (see July 31, 1993 issue).

A second option is to actually change the Senate rules to explicitly forbid filibusters against judicial nominees. Frist has already begun to pursue this option, sending just such a rule change to the Rules Committee for a June 5 hearing.

But this strategy is doomed, since Senate rules indisputably allow Democrats to filibuster changes to Senate rules. Also, a vote on the rule change would require a full day of advance notice, and then a 2/3rds majority of senators present and voting-meaning that it would probably take 67 votes.

Some Senators, including Chambliss, have also voiced support for a third option: a lawsuit in federal court challenging the Democrats’ ability to filibuster judicial nominations. The U.S. Senate would be a defendant in the case, but the body cannot defend itself in court unless a majority votes to authorize its own legal representation. That could lead to a default judgement in favor of the plaintiffs, and no one would be there to represent the Senate and file an appeal.

Conservatives are wary of this option, however, since it lets courts dictate legislative matters to the Senate.

The fourth option, mentioned by one Republican senator, is for the GOP to pocket the issue and use it to their political advantage for the 2004 election-much like they did in 2002. Bush’s consistent mention of judicial nominations while on the campaign trail last year helped Republicans win contested Senate seats in Georgia, Missouri, Minnesota, both Carolinas, and Texas-and it could do so again next year in Georgia, both Carolinas, and Florida.

However, the political option alone will not likely put enough Republicans in the Senate to get a filibuster-proof majority of 60. Senate Republicans now number 51, and they will not gain more than six seats in 2004. That would be enough to push Miguel Estrada’s nomination through, but not that of Priscilla Owen, who received only 52 votes toward cloture this month.