Seventy-four percent of Americans surveyed by CBS News said Congress intervened in the Terri Schiavo right-to-die case to advance a political agenda, not because they cared what happened to the Florida woman whose last days took center ring in a grotesque national media circus. The people called it accurately, as right-wingers on Capitol Hill confirmed with incendiary reactions to Schiavo’s death. “The time will come for the men responsible for this to answer for their behavior,” snarled House majority leader Tom DeLay; GOP Senator John Cornyn wondered aloud on the Senate floor whether there was a connection between the “perception” that judges are making political decisions and the fact that “some people…engage in violence.” Both DeLay and Cornyn took some appropriate hits for playing to the worst instincts of a country where in recent months judges and their families have been the targets of violence. But few in Washington were confused about the meaning of DeLay’s warning: While he might muse about impeaching federal jurists, his real passion is for removing barriers to the Bush Administration’s campaign to pack the courts with right-wing judicial activists.
DeLay has made no secret of his desire to “go nuclear” in the fight over judicial nominations, and Senate majority leader Bill Frist, another Schiavo interventionist, shares his enthusiasm for blowing up the rules that allow a minority of senators to use a filibuster–best understood as the unlimited extension of debate–to block controversial judicial nominations. During Bush’s first term, when the Senate flipped back and forth between Republican and Democratic control, Democrats managed to derail ten of the Administration’s 229 nominees for federal judgeships–in Judiciary Committee votes when the Democrats controlled the committee and later, when Republicans took charge, with filibusters. Among those blocked were Bush’s most extreme picks for federal appeals court benches in the West and South, such as California Supreme Court Justice Janice Brown, who argues that the First Amendment permits corporations to make false or misleading representations without legal ramifications, and Texas Supreme Court Justice Priscilla Owen, whose moves to undermine protections for women seeking abortions were so radical that another justice, right-winger Alberto Gonzales (now US Attorney General), decried them as an “unconscionable act of judicial activism.”
With Republicans more firmly in control of the Senate after the 2004 elections, Bush has resubmitted the names of Brown, Owen and five more blocked nominees. Even with the Senate split fifty-five to forty-five, Democrats still have the forty votes needed to maintain a filibuster. But Republican leaders in the Senate, including Frist, are so determined to satisfy the Administration and their party’s social conservative base that they have signaled their willingness to invoke the “nuclear option” of radically rewriting the Senate’s rules to make filibusters of judicial nominees virtually impossible. So the fight is on, not just to save a Senate rule but to maintain this country’s already compromised system of checks and balances on executive and legislative overreach.
The filibuster takes its name from the Dutch word for “pirate,” and it has long been associated with a buccaneering approach to the legislative process. Dissident minority senators have historically tossed the final roadblock of the filibuster in the way of nominations or laws they could not prevent in any other manner. As with most tools, the filibuster can be used for good or ill. For every Paul Wellstone filibustering to block a corrupt bankruptcy “reform,” there was a Strom Thurmond filibustering to slow the civil rights movement. Unlimited debate was allowed until 1917, when President Wilson, worried about the prospect of antiwar senators like Robert La Follette using the filibuster to challenge his rush to enter World War I, prevailed upon the Senate to adopt a rule allowing two-thirds of senators to vote to end a filibuster. In 1975 the ratio was modified to three-fifths, or sixty votes, where it has remained. But there has rarely been serious discussion about eliminating the filibuster until now.
If the nuclear option is invoked, Congress will become an altered branch of government. In the absence of rules that require the consideration of minority views and values, the Senate will become little different from the House, where the party out of power is reduced almost to observer status. That’s why Robert Byrd, dean of the Senate and the most ardent champion of the chamber’s rules, called the nuclear option “a legislative bomb that threatens the rights to dissent, to unlimited debate and to freedom of speech.”
The nuclear option could take a variety of forms. Under the most likely scenario, Vice President Cheney, president of the Senate, would rule that filibusters against judicial nominees are unconstitutional. If a bare majority of the Senate upheld the move, such filibusters would for all practical purposes be eliminated, and only fifty-one votes would be needed to approve a nominee. Democrats would effectively lose their last tool for blocking Bush choices not just for the lower courts but also for the Supreme Court seats that are all but certain to open before his term ends.
If the filibuster survives in its current form, Democrats will be credited with a significant legislative victory–keeping the process open for the Supreme Court nomination fights, during which the GOP would have a hard time changing the rules. But there aren’t enough Democratic senators to prevent Frist & Co. from going nuclear. The “no nukes” camp must be expanded to include at least a handful of Republicans. It makes sense to begin with the GOP’s dwindling circle of moderates: Maine’s Susan Collins and Olympia Snowe, Rhode Island’s Lincoln Chafee, Pennsylvania’s Arlen Specter, Indiana’s Richard Lugar. If ever there was a time when thinking Republicans needed to separate themselves from their party’s jihadist wing, this is it. But it makes just as much sense to pressure conscientious conservatives. Already two former GOP senators with pristine conservative pedigrees, James McClure of Idaho and Malcolm Wallop of Wyoming, have argued in a Wall Street Journal op-ed that going the nuclear route could mean the end of the Senate as “a continuing body with continuing rules.”
While Frist and his allies claim they only want to change the rules for consideration of judicial nominations, McClure and Wallop argue that “it is naïve to think that what is done to the judicial filibuster will not later be done to its legislative counterpart.” They add, “Without the possibility of a filibuster, a future majority leader could bring up objectionable international commitments with only an hour or two for debate, hardly enough time for opponents to inform the public and rally the citizenry against ratification.”
The abuses that McClure and Wallop fear ought not to be the concern merely of Democrats and retired Republican senators; current GOP senators who presume to speak for more than the narrowest and most partisan wing of their party–people like Arizona Senator John McCain–have a responsibility to speak up. That is most likely to happen if they hear a loud call along the following lines from their constituents: This is not an issue of Republican versus Democrat, nor even liberal versus conservative; this is a moment when we decide whether this country will remain a democracy in which those who govern must play by the rules, or will become a winner-take-all system where the gravest fear of the founders–tyranny of the majority–will be the lasting legacy of George W. Bush, Tom DeLay and Bill Frist.