Time to Drop the Bomb

As noted in the past, I'm a huge proponent of the so-called nuclear option in the Senate. As far as I'm concerned, the Senate can and should change its rules on filibustering judges. In fact, I'm unlikely to support the filibuster for most legislation, unless the filibustering Senators are forced to actually filibuster -- at least a Senator trying to read the King James Bible into the record while continuing debate for hours on end might be funny.

But Senator Frist finally appears willing to take the Democrats on regarding this issue. The obstructionist tactics of the Democrats definitely drove GOP voters to the polls in November, and Frist understands this. As noted by Pete DuPont in the Journal, it's not like the Democrats have been consistent on this issue...

Sen. Barbara Boxer is a longtime opponent of judicial nomination filibusters. Or she was. Suddenly the light has dawned, and she realizes how wrong she was to oppose them: "I thought I knew everything. I didn't get it. . . . I am here to say I was totally wrong."

Other Democratic senators have had similar changes in belief: Joe Biden and Robert Byrd, Tom Harkin, Ted Kennedy, Joe Lieberman, Pat Leahy, Chuck Schumer and their erstwhile colleagues Lloyd Bentsen, and Tom Daschle have all vigorously opposed the use of the filibuster against judicial nominations. Mr. Schumer was for voting judicial nominations "up or down" without delay. Mr. Leahy flatly opposed a filibuster against Clarence Thomas's Supreme Court nomination: "The president and the nominee and all Americans deserve an up-or-down vote." Mr. Harkin believed "the filibuster rules are unconstitutional," Mr. Daschle declared that "democracy means majority rule, not minority gridlock," and Mr. Kennedy that "senators who believe in fairness will not let the minority of the Senate deny [the nominee] his vote by the entire Senate."

But that was then, when Democrats controlled the Senate. Now, they are a frustrated minority and it is different. Mr. Leahy has voted against cloture to end filibusters 21 out of 26 times; Mr. Kennedy, 18 out of 23. Now all these Senators practice and defend the use of filibusters against judicial nominees.

As DuPont notes, should the Dems ever regain control of the Senate and the Presidency (and should pigs fly), these same folks will probably re-discover the nuclear option. Bob Dole, who knows a few things about working in the Senate, nails it with his editorial today in my least favorite daily paper...

When I was a leader in the Senate, a judicial filibuster was not part of my procedural playbook. Asking a senator to filibuster a judicial nomination was considered an abrogation of some 200 years of Senate tradition.

To be fair, the Democrats have previously refrained from resorting to the filibuster even when confronted with controversial judicial nominees like Robert Bork and Clarence Thomas. Although these men were treated poorly, they were at least given the courtesy of an up-or-down vote on the Senate floor. At the time, filibustering their nominations was not considered a legitimate option by my Democratic colleagues - if it had been, Justice Thomas might not be on the Supreme Court today, since his nomination was approved with only 52 votes, eight short of the 60 votes needed to close debate.

That's why the current obstruction effort of the Democratic leadership is so extraordinary. President Bush has the lowest appellate-court confirmation rate of any modern president. Each of the 10 filibuster victims has been rated "qualified" or "well qualified" by the American Bar Association. Each has the support of a majority in the Senate. And each would now be serving on the federal bench if his or her nomination were subject to the traditional majority-vote standard.

This 60-vote standard for judicial nominees has the effect of arrogating power from the president to the Senate. Future presidents must now ask themselves whether their judicial nominees can secure the supermajority needed to break a potential filibuster. Political considerations will now become even more central to the judicial selection process. Is this what the framers intended?

...In the coming days, I hope changing the Senate's rules won't be necessary, but Senator Frist will be fully justified in doing so if he believes he has exhausted every effort at compromise. Of course, there is an easier solution to the impasse: Democrats can stop playing their obstruction game and let President Bush's judicial nominees receive what they are entitled to: an up-or-down vote on the floor of the world's greatest deliberative body.

Isn't this the party of counting "all the votes?" So why aren't we voting?

Wait, the king of "counting all the votes" has yet to weigh in. Ladies and gentlemen, it's Mr. Irrelevent himself, Al Gore...

Former Vice President Al Gore on Wednesday blamed Republican "lust for one-party domination" for the GOP campaign to change Senate rules on filibustering judicial nominees, and he assailed religious zealots for driving the effort.

Wading into the political fight that has roiled the Senate, the 2000 Democratic presidential candidate and former Tennessee senator warned that altering rules that have served the nation for 230 years would result in a breakdown in the separation of powers.

Filibuster supporters must be aghast -- they now have Gore's endorsement, which is the equivalent of the political kiss of death. If you don't believe me, ask 2004 Democratic Presidential nominee Howard Dean.