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On Judicial Nominations, It's Time to 'Go Nuclear'
By Jeffrey Mazzella
December 2, 2004

Make no mistake, the issue of judicial confirmations played a pivotal role in President George W. Bush winning a second term and a stronger majority in the United States Senate.

After enduring three full years of partisan obstruction in the Senate against his highly qualified picks for the federal bench, and with the prospect of at least one, if not two, three or even four potential vacancies on the U.S. Supreme Court in the next four years, the President touted the issue in nearly every stump speech he delivered, prompting some of the loudest applause on the campaign trail and resulting in a convincing win at the ballot box.

Even Senate Obstructionist-in-Chief Tom Daschle (D-SD), who enjoyed 18 years of solid support from South Dakota voters, was ousted, ending the career of the long-time face of Senate Democrats and marking just the third time in our nation's history that a party leader has been defeated. And if you ask John Thune, the former South Dakota Representative who knocked the filibuster mastermind off his throne, the judicial confirmation issue made the difference in his election.

Yet, despite the voters' November 2 demand to "Confirm the Judges" (or at least to hold simple up-or-down floor votes on their confirmations), President Bush's judicial picks should not expect smooth sailing, or even fair treatment, regardless of the GOP's 55-seat majority.

Senate Democrats from Minority Leader Harry Reid to Judiciary Committee Ranking Member Patrick Leahy to Charles Schumer have already hit the boob tube talk show circuit whining that the President's nominees have been treated fairly over the past three years. They argue that more than 200 of the President's judicial nominees have been confirmed while only 10 have faced the filibuster wrath -- clearly indicating a continuation of their character assassination campaigns and obstruct-and-delay strategy.

The reality is that, prior to the 108th Congress, no nominee to a federal appellate court had ever been defeated by a filibuster. By using the procedural tool to block 10 appellate court nominees, Democrats successfully set an extra-constitutional precedent of requiring 60 votes for Senate confirmation rather than the simple majority 50-plus-one that the Founding Fathers intended. In doing so, they have laid the groundwork to filibuster as many as four Supreme Court nominees in President Bush's second term, which has been the strategy all along.

With Democrats not flinching, it's time for the Republican leadership to exercise the mandate on judges handed to them by the American people. In other words, it's time to "go nuclear."

The so-called Nuclear Option is nothing more than a correction of the current interpretation of Senate rules to reflect the unconstitutionality of filibustering judicial nominations. It would rely on a ruling from the Chair -- most likely Vice President Dick Cheney -- that would declare such a filibuster unconstitutional. The majority would then uphold that ruling by simple majority vote.

The downside is that Democrats have suggested such a parliamentary maneuver would be taken as a "declaration of war," against which they would retaliate with nonstop filibusters against nearly every piece of legislation, grinding the Senate to a halt. Republicans should call this bluff. If Senate Dems do retaliate, woe be it for their 17 members facing re-election in 2006. Just ask Mr. Daschle.

Some Republicans have been reluctant to move forward with the Nuclear Option because they want to preserve their "right" to filibuster nominees when there's a Democrat in the White House. But using partisan filibusters to block judicial nominees who have secured majority support is not a "right," as everything about it is wrong. This is true regardless of which party is in power, for the very reasons Republicans, themselves, argue today.

In a keynote speech recently delivered at the Federalist Society's Annual Gala, Senate Majority Leader Bill Frist noted, "The minority has abandoned over 200 years of Senate tradition and precedent," in filibustering judicial nominees. "This radical action presents a serious challenge to the Senate as an institution and the principle so essential to our general liberty -- the separation of powers. ... The Senate cannot allow the filibuster of circuit court nominees to continue. Nor can we allow the filibuster to extend to potential Supreme Court nominees."

The Majority Leader is right. But it is one thing to say it and another to do something about it.

With increased speculation about a Supreme Court battle sooner rather than later, now is the time to nuke the filibustering of judicial nominees and obliterate, once and for all, what Senator Frist rightly called the "tyranny by the minority."

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Jeffrey Mazzella is Executive Director of the Center for Individual Freedom. (www.cfif.org)

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Note -- The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of GOPUSA.