May 7, 2003
PROGRESS ON JUDICIAL NOMINEES
Hatch group may go "nuclear" on judges (TheHill.com, 5/7/2003)Several senior Republican senators are seeking wider party backing for a bold plan that would break the Democrats' filibuster of President Bush’s judicial nominees....
Under the strategy envisioned by Senate Judiciary Chairman Orrin Hatch (R-Utah), among others, the Republicans would strip any Senate minority--currently the Democrats — of their ability to filibuster presidential nominees....
Under the most likely scenario now under discussion, they would secure a ruling from the chair that Senate Rule XXII does not apply to executive submissions to the Senate--and that includes judicial nominees. Rule XXII provides for unlimited debate on all legislative issues that reach the floor unless three-fifths of the Senate calls a halt....
From the standpoint of the proponents, the appeal of this "silver-bullet" strategy is that it would quash the Democratic blockade without requiring 60 votes, the number needed by current rules to halt such delaying tactics, or 67 votes, the number needed to change a filibustered Senate rule.
Under the most likely scenario, the presiding officer of the Senate--perhaps Vice President Dick Cheney--would rule that a filibuster of presidential nominees is unprotected by Rule XXII.
Democrats would need 51 votes to overturn that ruling. In practical terms, that means they would need the help of two GOP defectors — three if Sen. Zell Miller (D-Ga.) votes with Republicans, as he often has....
Hatch said the Democratic filibuster is “violative of the Constitution” and “totally politicizing of the judicial selection process,--adding: "I know how to break it, and I will when the time comes."...
Hatch believes the Senate has a right to set its own rules--in this case the right to filibuster--for the legislative calendar but not for the executive calendar because that would entail imposing Senate rules on the executive branch and would violate the Constitution’s separation of powers.
"The executive branch and the judicial branch are co-equal [with the legislative branch]," Hatch said....
If Republicans were able to force a change by jamming through a procedural ruling, “It would be a nuclear winter in the Senate,” said [a Senate Democratic leadership] aide. "This place would fall apart. It would be dire consequences if that happened, in my opinion."
This is a superb plan. It would repair a flaw in the Senate rules; and, for Republicans, the consequences would be wonderful:
- It would open the way to retirements of Rehnquist and O'Connor and their replacement by equally conservative nominees.
- It would enable the appointment of Clarence Thomas as the nation's first black Chief Justice. As long as the ability to get nominees confirmed is in doubt, Rehnquist would have to be replaced by someone off the Court, so that we wouldn't lose a conservative seat.
- As the Rehnquist and O'Connor replacements would be minorities, the Democratic coalition would be further undermined by their bitter opposition to these appointments.
- The move would end the risk of the judicial issue snowballing into a giant winner-take-all issue, in which most of the judiciary falls vacant and the first President with the support of 60 Senators determines the composition of the supreme law-making body. Were that to happen, politics in America would become incredibly polarized.
It is hard for me to see how the Democrats could retaliate for this. After all, they are doing everything in their power to obstruct now. The only things that have gotten through have been under the cover of budget resolutions -- e.g. the 2001 tax cuts were time-limited so as to qualify for inclusion in budget resolutions and thereby escape filibuster -- or, in the case of the Iraq war resolution, under the national spotlight and intense popular pressure.
But if the threat of "nuclear winter" is real, conservatives can only regard that as a bonus. With Democrats volunteering to stand athwart history, Republicans can leave work and play golf.