Some republicans object to using the term nuclear option to describe their plan to end filibusters on the Senate floor during confirmation hearings, but the image of total war is a fitting one for the possible direction of the “upper chamber” these days.
The 11th-hour compromise between the squishes in both parties will only serve to hold off a return to the state of nature until a Supreme Court vacancy arises. Then, bedlam will ensue, and both sides may deploy their nuclear weapons: For the Democrats, that’s a filibuster; for the Republicans, a rule change castrating the filibuster.
There is plenty of blame to go around for the lack of comity in the Capitol, and, indeed, the escalation bears some semblance to the Israeli/Palestinian conflict: Democrats threaten to grind the Senate to a halt because Republicans are changing the rules because Democrats are disregarding tradition by filibustering judges because Republicans delayed many of Clinton’s judges—and so on.
No conservative can advocate the GOP nuclear plan with a happy heart. Republicans have little more respect for tradition than they do for federalism. Chipping away at the filibuster would, in the long run, expedite the process of How a Bill Becomes a Law—which cannot be good for the country. But the Democrats have gone nuclear already with their filibusters based on lies. The Republicans would be in the right to drop a fat boy.
This is not a grudge match. The battle over appellate-court nominations (where all the filibusters are occurring) and the Supreme Court battle for which it is the cacophonous prelude truly are something of a political Armageddon for both sides.
Some of the media and the moderates, such as Judiciary Committee Chairman Arlen Specter, claim the fighting is so fierce because all the rhetoric and all the maneuvers have put both sides in the position where neither is willing to lose face by backing down—akin to an after-school rumble. The better analogy would be Thermopylae: In the culture wars, the left is holding on to one last position of power within government, and they will protect it by any means necessary.
The Democrats have asserted all along that the ten nominees they have filibustered are only a small batch of “extremist” judges out of the 218 conservative men and women President Bush has nominated. This is dishonest. The nominees the Democrats have denied up-or-down votes are no more conservative or less qualified than many they have let pass. They are, in fact, arguably the best and the brightest by many standards—and that is exactly the point.
Janice Rogers Brown, a black woman with a compelling life story and a razor-sharp intellect, won the support of 76 percent of Californians in her last retention election. She is Supreme Court material. To the left, that means she must be stopped now. The moderates’ deal let her nomination to the D.C. Court of Appeals pass, to the chagrin of the Democratic leadership.
Democratic memos obtained quietly from a server left unprotected show us their thinking. In one memo, a Democratic staffer wrote: “Miguel Estrada was especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.”
What does the left fear from a conservative court? They say the rights of workers and women would be taken away. They try to scare people about what Janice Brown’s America would look like. In truth, however, conservative Supreme Court justices—who, these days, are mostly in the business of dissenting from federal and judicial power grabs—cannot do anything to you.
George W. Bush can launch wars, and the attorney general can order your phone tapped. John Paul Stevens can put you at risk of arrest if you lead a prayer at a high-school football game, and David Souter would force your children’s Boy Scout troop to accept homosexual scoutmasters. But Clarence Thomas and Antonin Scalia would leave most standing law alone and limit the reach of the Interstate Commerce Clause.
That is the problem. NARAL, People for the American Way, and a few other left-wing groups call the Democrats’ shots on the judges, as those memos show. Their agenda includes abortion on demand, homosexual marriage, consigning the free exercise of religion to behind closed doors, and a long list of liberal fantasies that would never win in the ballot boxes or the legislature—not even in today’s relativistic society.
Everywhere that homosexual marriage has won, it has been on the power of a court overruling the people or their representatives. NARAL knows that, without Roe v. Wade and its companion decisions, aborting a nine-month-old, fully viable fetus by the process of “Dilation and Evacuation” would likely be outlawed in many parts of the country.
The radical left, which bankrolls the Democratic Party, needs activist liberal judges. Anybody more restrained than Sandra Day O’Connor might hand these issues back to the people and the states, respectively. For the generals of radical social change, that is a threat worth going nuclear over.