The D.C. face-off is all about power and ideology

Ross Mackenzie
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Posted: May 12, 2005 12:00 AM

So the outrageous behavior of the Democratic left in the Senate - and in Washington more broadly - has brought the Republicans to the brink of employing the nuclear option (more dispassionately: the fairness option) for nominees to the federal courts.

Rarely in the post-World War II era has D.C.'s partisan atmosphere turned so vicious, so acrimonious, so poisonous. Still, inconsistency on the filibuster is not the proprietary terrain of a single party. Segregationists, mostly Democrats, filibustered repeatedly on civil-rights legislation. Democrats did it again on such seemingly simple issues as deregulation of natural gas. Now they are effectively filibustering a cohort of administration nominees to the appellate courts, in a warm-up for coming confrontations over nominations to fill vacancies on the Supreme Court.

For their part, the Republicans are impure on filibustering judicial nominees. Lyndon Johnson's 1968 nomination of Justice Abe Fortas to become Chief Justice was stopped by a filibuster. And Republican senators became proficient at sitting on Clinton nominees they didn't like the way chickens will sit on eggs that never hatch.

Yet the Fortas filibuster, such as it was, stands as a rare example of an ideologically driven filibuster of a judicial nomination in which the Republicans participated; they joined with Southern Democrats from fear of Fortas' thoroughgoing liberalism. Today's brazen Democratic behavior defies historical comparison.

The D.C. face-off is all about power and ideology. We are in a conservative Republican hour. The Republicans hold the presidency and both congressional houses - by increasing numbers everywhere. Yet the Democrats act as though they do not read the election returns - or perhaps they read them too well. The federal judiciary is liberalism's last governmental redoubt. With the Supreme Court closely divided but with no vacancy there during Bush II's first term, the Democratic left has stymied key appellate nominees for four years.

They have built a separate industry that vacuums every nominee's opinions, statements and personal history in search of the merest nit, and out of such nits manufactures complicated constructs against the nominee's suitability for the bench - constructs that seem oh-so-sensible but are grounded in leftist intolerance of conservative belief.

In all, the Senate Democratic minority holds firm, standing on the threat of filibuster against these nominees in the knowledge that the Republicans could not muster the 60 votes required by Senate rules to break a filibuster, even though all the nominees likely would receive at least a 51-vote majority to win confirmation in a floor vote. Bipartisanship, such as it is, is all the other way, with certain Republican liberals tempted to vote with the Democrats against changing the Senate rule requiring a 60-vote three-fifths majority to break a filibuster, to a 51-vote simple majority - the nuclear, or fairness, option.

Please remember, here, that we are talking about Democrats who refer to the opposed nominees as "Neanderthals" (Teddy Kennedy). Whose Senate leader a year ago (Tom Daschle) said the Democrats would block all administration nominees until "the White House gives us the assurance that (it) will no longer abuse the process." Whose current Senate leader (Harry Reid) demands "cooperation rather than confrontation" - all the while refusing any meaningful compromise. And whose party leader (Howard Dean) declares himself the center of a centrist party yet shreds the very fabric of comity with declarations such as, "I hate Republicans and all they stand for."

President Bush called this week for an up-or-down floor vote on every languishing nominee, which seems fair enough. So far, the Democrats refuse to go along - refuse even to agree to a proposed Republican compromise that would allow up to 100 hours of floor debate on each nominee before a vote. The Washington Post's David Broder, not known for sharing many Republican or conservative tenets, terms the Democrats' rejection of that offer tantamount to distrust of "the majority of Senators of both parties to weigh the merits of these judges after hearing the arguments, pro and con, for their confirmation."

The Democrats say they will respond to use of the nuclear option to win confirmation of federal judicial nominees by shutting down the Senate.

But this Senate minority has just about shut it down already. The new Congress already has passed administration measures on bankruptcy reform and tort reform, on extending tax cuts and opening a minuscule portion of the Arctic National Wildlife Refuge to oil drilling. Yet Democratic resistance to Social Security reform, with no genuine Democratic alternatives proposed, would give the president a perfect excuse to drop it. And the left never will support tax simplification, tax reform, tariff elimination, or any new initiatives by President Bush abroad.

If by shutting down the Senate over judicial nominations the Democrats want to bear the blame for failing to enact what voters want, then the Democrats will have to deal with the consequent voter wrath - as the Republicans did when they shut down the government over the budget a decade ago. The left should contemplate inviting that wrath in light of the results of the November elections.

Both at home and abroad, this is the pre-emption president. He is calling for the vote on his judicial nominees - forcing the Democratic hand. Republican failure to go with the nuclear option not only will amount to acquiescing in the surrender of the president's power of appointment with the advice and consent of the Senate majority. It also will only embolden the minority to thwart other Bush initiatives.

The Democratic minority cannot be allowed to get away with that to protect its last stronghold of extremism - the federal courts. In many realms, the courts have gone too far - even the Supreme Court, in opinions written by the unlikely Justice Anthony Kennedy.

As University of Virginia professor Larry Sabato notes, "When the judiciary doesn't restrain itself, then the stakes inevitably become much higher for judicial confirmation. I don't think Anthony Kennedy understands the forces he has unleashed. He will also be responsible for the nuclear option if it happens."

If the Democrats exploit the existing rules to play unfairly, the rules should be changed to get on with filling appellate court vacancies, a category in which Bush II has known a confirmation rate hardly more than half that of any president since Jimmy Carter. In the name of fairness and carrying out the popular will, it's time.

Nuke 'em.