- The Washington Times - Saturday, January 1, 2005

I disagree with the notion the Senate Republican majority would be exercising a “nuclear option” by changing the rules on vote cloture to prevent Democrats from filibustering President Bush’s judicial nominees.

The Constitution empowers the president to appoint judges with the advice and consent of the Senate. The advice and consent power was never intended to confer co-equal power on the Senate over judicial (and other) nominations. Rather, it was designed to provide a legislative check to reduce the risk that a president would appoint unqualified judges or those with poor character.

The Constitution also empowers the Senate to make its own rules. Rule XXII provides that upon the filing of a petition for cloture (to end further debate), “three-fifths of the senators duly chosen and sworn” must vote to close the debate.

When 41 or more senators work in concert to forestall cloture, it is known as filibustering. The very act of filibustering, by definition, is designed to thwart the will of the Senate majority. But the majority of the Senate has the power to change its own rules. At any time the Senate could prospectively change vote cloture rules altogether or only for certain types of votes.

Presently, the Republican Senate majority is contemplating a measure to change the rules on vote cloture only for the president’s judicial nominations. Senate Resolution 138, should not be considered a power grab by the majority, but a necessary remedy the Democrat minority’s unprecedented abuse of power over the president’s judicial appointments.

The resolution is hardly radical in scope or application. It would provide a declining series of votes to end debate on judicial appointments. The first motion for cloture would still require a three-fifths vote, and the second and third attempts would require 57 and 54 votes, respectively, with all attempts thereafter requiring a simple majority.

Obviously, the resolution is not designed to cavalierly end thorough debate on any judicial nominee’s fitness, but would guarantee the majority will would eventually prevail.

Some have argued this is an extreme “nuclear option” Republicans exercise at their peril. Filibustering, after all, has been around for years, and the Republicans shouldn’t be so cocky as to replace it because they control the legislative and executive branches.

Not so fast. While filibustering has been around for years, it has rarely been used by a Senate minority to thwart the president’s judicial appointment power. But at least seven of Mr. Bush’s judicial appointments blocked without a full vote of the Senate.

Up until this presidency, it was understood Senate minorities would not filibuster judicial nominees. Doing so effectively upsets the Constitution’s separation of powers — one of the most important bulwarks designed to limit government by preventing any one branch from gaining too much power.

As constitutional scholars have noted, including many in the Federalist Society, and Landmark Legal Foundation’s Mark Levin, it is one thing for the Senate minority to thwart the will of the Senate majority on issues constitutionally assigned to Congress — such as taxing and spending bills. It is another for it to do so over those powers, like judicial appointments, largely the president’s prerogative.

The Senate, it seems, could constitutionally change its vote cloture rule to prevent filibuster across the board, but this would be a more dramatic historical departure. But for it to change the rule only for judicial appointments would hardly be an in-your-face “nuclear option.”

The nuclear option was exercised when the radical minority filibustered the president’s judicial nominees, thereby usurping his appointment power. For the Senate to pass Resolution 138 would be more akin to employing a Strategic Defense Initiative — a nuclear missile defense system.

Crack political analyst Dick Morris argues Republicans would cut their own throats by passing this resolution because the election didn’t give them or President Bush a mandate on social issues but only on the War on Terror. This resolution, he contends, would backfire and undermine the chance to cement a solid Republican majority for the future.

I disagree. Republicans merely want the president to be able to appoint constitutionalist judges. Since when did the appointment of judges who would read the Constitution according to its original intent become an extreme act?

What is extreme is for presidents to appoint judges who make up the law as they go, rewriting the Constitution at will. Reversing that practice is not extreme but restorative.

Mr. Morris underestimates the power of Mr. Bush’s conservative base, who would feel betrayed and disenfranchised if he appointed “moderate” read pro-choice judges.

And while the election did probably turn more on the war than on social issues, the voters knew Mr. Bush intended to continue appointing originalists to the federal bench. I doubt they would consider it a power grab for the Senate to change its own rules to prevent further usurpations of the president’s powers.

Republicans need to stop squandering their own prosperity and adopting timidity every time they get in power. The voters elected them, and they have the right — indeed the duty — to try to carry out their agenda fairly and squarely under the rules. This would be neither extremism nor an abuse of power, but fulfillment of their promises when they ran for office.

David Limbaugh is a nationally syndicated columnist.



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