April 20, 2005
The 'Let Every Vote Count' Option

By Debra Saunders

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 gets done.

Too bad Senate rancor didn't get this ugly before the wrongheaded bankruptcy bill made it through both houses of Congress.

Anyway, if the Republicans had been more savvy, they would have named their anti-filibuster move: "Let every vote count."

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. Senate.

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.

I should 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.

Meanwhile, 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 -- listen.

Copyright 2005 Creators Syndicate

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Debra J. Saunders
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