The 'Let Every Vote Count' Option
In Washington parlance, Senate Majority Leader
Bill Frist's attempt to change the Senate's rules so that Democrats
cannot block up-or-down votes on judicial nominees is called "the
nuclear option." If the Republicans use their ability to
stop judicial filibusters, the thinking goes, then that would
nuke any chance of bipartisan cooperation. Next follows threats
from the Dems' side of the aisle to retaliate with "nuclear
winter" -- in other words, obstructionism so that nothing
Too bad Senate rancor didn't get this ugly before
the wrongheaded bankruptcy bill made it through both houses of
Anyway, if the Republicans had been more savvy,
they would have named their anti-filibuster move: "Let every
That name would remind the citizenry of the patent
unfairness of the current way Washington operates. That is, when
the Democratic leadership doesn't like a particular judge, but
it realizes that its complaints aren't sufficient to get enough
Democrats to vote against the judge, it uses the Senate rules
to prevent taking a vote. The rules allow a minority to stop a
vote unless 60 senators vote to bring a matter to the floor. So
41 senators can prevent a vote from ever happening. Thus, 10 of
President Bush's 52 nominees for federal appellate courts lost
a shot at the post without a vote ever being taken.
Filibuster aficionados say they are part of a
long and noble tradition -- citing a fictional character, Mr.
Smith, played by Jimmy Stewart in "Mr. Smith Goes to Washington,"
who bravely stuck out his neck for a good cause. Nice image, but
today's maneuvers are anything but courageous. Rather than stick
out their necks, obstructionists have pulled into the their shells
and rely on arcane rules to shut down the process -- a process
that they can't win in a fair fight.
In San Francisco last week, Republican National
Committee Chairman Ken Mehlman smelled opportunity. He noted that
a prominent victim of the Dems' obstructionism is a local hero,
Janice Rogers Brown, a California Supreme Court justice nominated
by Bush for the federal appellate court, but snubbed by the U.S.
Mehlman noted that Brown is a "victim"
of an "unprecedented double standard" that allows the
Senate to defeat a nominee without voting on the nomination. Brown
enjoys the "support of the majority of the Senate,"
he added, and still she cannot expect a confirmation vote.
Before, you would have a vote by the Senate, and
you'd lose. But Brown had been eliminated without a vote, and
now Bush has brought her back for another pass at confirmation.
Why was she not approved? Mehlman wouldn't say so, but I think
it is because Brown is black, the daughter of a sharecropper,
and if there is anything Democrats in Washington want to stop,
it is the progress of black conservatives. They could not stop
Colin Powell or Condoleezza Rice, but they can torpedo a lesser-known
figure, such as Brown.
note that some GOP senators, including Sen. John McCain of Arizona,
oppose the "nuclear option." They look to the day when
the Dems are in charge, and Republicans might want to torpedo
a liberal judge on a technicality. That's civility, D.C.-style.
Fair enough. Frist should not use the nuclear option for lower-court
appointments and instead should save the big gun for the big fight.
That is, only if Democrats refuse to allow an up-or-down vote
on a nominee for the U.S. Supreme Court.
there is another battle brewing in Washington, and here President
Bush might care to be constructive. Mehlman complained about "activist
judges" -- that is, judges who ignore laws they don't like.
But going after activist judges is a big mistake
-- the right is ignoring the other half of that equation -- an
activist Congress that wants to play judge. For example, Congress
played judge when it voted to take away judicial discretion by
passing laws such as the God-awful bankruptcy bill and imposing
mandatory minimum sentences. So the war between the courts and
Congress is escalating.
President Bush ought to convene some sort of confab
where both sides can suggest where to draw the line to prevent
judicial and congressional overreach. After all, the nuclear element
of the nuclear option and nuclear winter is a lack of respect
for the other branch of government. More dirty tricks are not
going to heal wounds, but talk in the open light of day could
make both branches do something they haven't done in too long
2005 Creators Syndicate
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