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It's time to go nuclear over judiciary

By Paul M. Weyrich
web posted December 6, 2004

The other day I was interviewed by a magazine which very closely follows what is happening in the Congress. The reporter wanted to get my views on whether the President would nominate the same kind of judges he did during his first term. I said that I believe that the President firmly believes in the sort of judges he has put forth and I saw no reason why he would change in his second term.

The reporter, with whom I speak frequently, told me he had just interviewed Senator Harry Reid of Nevada, the Minority Leader for the 109th Congress, and other Democratic leaders as well. He said they indicated that they were prepared to filibuster the President's judicial nominees just as they did in the last Congress.

I said that would make no sense. They lost four seats in the 2004 elections. It is known that there was some grumbling in the Democratic Caucus at having to filibuster all those judges in the 108th Congress. The then-Minority Leader, Senator Tom Daschle of South Dakota, assured his colleagues that filibustering nominees was a winning strategy that would help the Democrats take back the Senate, and that in the next Congress they would not have to filibuster nominees because the nominees would never see the light of day.

That strategy lost. There will be four fewer Democrats in the 109th Congress then there are for the 108th Congress. Moreover, Daschle himself was unseated, the first time since 1952 that a Senate Party Leader was toppled. I postulated that Senators on their way to vote would see the scalp of Daschle hanging up in the corridors of Congress. They would look at that and say, "I don't want to be next."

The reporter told me that Reid and his colleagues see things very differently. They think that the election of the new Senators in the South has nothing to do with judges. They think that Daschle's defeat also had little to do with judges. They apparently believe that they lost all five contested seats in the South because these are "Red" States (States which the President carried in this past election) and these new Senators were just carried along with President Bush. As to Daschle, South Dakota has a history of tossing out its Senators after three terms, plus, according to these Democrats, there were many local issues which contributed to the Daschle defeat.

I guess we could call this "Democrats in denial."

First of all, the issue of judges was very prominent in the Daschle-Thune race. Senator-elect John Thune raised the judges issue continually in his brilliantly orchestrated campaign. So did President Bush. President Bush never gave a speech in this campaign without bringing up the Senate's blocking his nominees. Reporters who covered the President tell me it was one of the best applause lines in his standard stump speech.

The other line which got thunderous applause was the President's support of a Constitutional Amendment on marriage. That also was related to out-of-control judges.

The President promised to pick judges who would interpret the law, not try to write laws themselves. So even if it is true that the five new Southern Senators were the products of President Bush's coattails, indirectly they got there because the President made judges an important campaign theme.

I reject the notion that these Senators only got elected because of President Bush. All five of them ran excellent campaigns and they themselves raised the judges issue. Each of them promised to vote to confirm the President's judicial nominees.

If Democratic Senators want to go on believing that the filibuster of judges had nothing to do with the new Senators coming into office, they will be in for a rude surprise in 2006. I know that the Party in the White House is supposed to take a terrible beating in the Congress in the sixth year of an eight-year term. But if Democrats keep on obstructing, Republicans may reverse history as they did in the 2002 elections.

Many of the Democrats running for re-election in 2006 are running in the Red States. Ken Mehlman is going to do his best to keep the Republican organization alive and well in those States in particular. Indeed, if the Democrats continue to filibuster judges, that may turn out to be THE issue in 2006.

If the Democrats are indeed in denial, then where does that leave Majority Leader Bill Frist? Clearly he simply can't tolerate cloture vote after cloture vote in the new Congress. Republicans will be in trouble in this next election if they are perceived as having accomplished little.

It is time for the "nuclear option". There are two ways to accomplish getting the Senate to the place where it takes just 51 votes to confirm a judge or justice. The first would be to amend the Senate Rules at the beginning of the session. That is dangerous. While there is overwhelming sentiment to abolish the practice of requiring 60 votes to break a filibuster against confirming a judge, conservatives do not want to weaken Rule 22 as to legislation.

When I was hired by the late Senator Gordon Allott (R-CO) in 1966, there were just 33 Republican Senators. The only weapon we had to stop the Great Society juggernaut was the filibuster. Yes, things look good for Republicans now, but the day may come again when they are down to that many Senators. They don't want to put themselves in the position where they can't stop the initiatives of a Democrat President if need be. Changing the rules might make it possible for the liberals to attack the legislative filibuster when they get back in power. We just can't take that chance.

The other way to achieve the objective of having just 51 votes to confirm a judge or justice is to wait for the Democrats to begin to filibuster. A Senator then could make a point of order, contending that the requirement of 60 votes to confirm a judge is unconstitutional. The Vice President (who should have been notified to preside at that point) would rule that 60 votes is indeed unconstitutional. Then virtually all Republican Senators would have to vote to uphold the ruling of the chair, which, of course, would be challenged by the Democrats. The Senate then would proceed on the nomination at hand and would have an up-or-down vote on the nominee in question.

That is the preferred option. It sets a precedent and the Senate operates on precedent.

The problem is that it does require at least 50 Republicans voting to uphold the ruling of the chair. That means the Majority Leader could lose five of his colleagues. That is one of the reasons that Senators pushed the incoming Chairman of the Judiciary Committee, who now has agreed to consider this move he had earlier opposed.

The reason Senator Frist didn't move earlier on this option was concern that he could not get 50 Senators to uphold the chair. In the 108th Congress he could afford only two defections: one Republican and Sen. Zell Miller (D-GA).

Something must be done to break the logjam. Democrats had either filibustered or have said that they were going to filibuster up to 18 of the President's nominees to the Courts of Appeals. These Courts are terribly important. The Supreme Court only takes a handful of cases each term. Most issues are settled in the Courts of Appeals and far more in State courts of last resort. Moreover, many nominees for the Supreme Court have come from the Courts of Appeals. Some observers believe that some of these Circuit Court nominees are being filibustered now because Senators don't want to have to filibuster a nominee for the Supreme Court later.

What Majority Leader Frist does on judicial nominees in many ways will determine the outcome of the 109th Congress. If he finds a way to break the logjam without damaging the legislative filibuster he will be a hero to the conservative movement. If he fails to break the logjam it will mean we will be in for two years of constant frustration.

Let us hope Senator Frist prevails. Indeed, some believe he will leave the Senate after the 2006 elections to run for President. Wouldn't he have one fine story to tell if he could showcase all of President Bush's judiciary nominees confirmed and serving the Nation? One fine story indeed.

Paul M. Weyrich is Chairman and CEO of the Free Congress Foundation.

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