President Bush shrewdly sharpened that choice for the Democrats last week when he announced he intends to renominate 20 candidates for the federal bench who were blocked by Democrats in the last Congress.
The best thing President Bush can do in his second term to advance the cause of freedom in the United States is to secure the confirmation of constitutionalist justices to the Supreme Court. But the second best thing he can do is to drive more liberal Democrats out of the Senate by forcing them to fight against constitutionalist judicial nominees.
In the last Congress, the Democrats blocked many of President Bush's judicial nominees by invoking cloture, which requires a vote of 60 senators to bring a nomination to a final floor vote. The architect of these filibusters was then-Senate Majority Leader Tom Daschle, a Democrat from South Dakota. He was defeated for re-election by conservative Republican former Rep. John Thune.
Senate Republicans are now pondering a change in Senate rules that would prohibit filibusters of judicial nominees. One possibility is called the "nuclear option," by which a simple majority of senators could affirm a ruling on the Senate floor by Vice President Dick Cheney that it is unconstitutional to filibuster judicial nominations.
In a recent issue of Human Events, Republican Sen. Orrin Hatch of Utah, the outgoing Senate Judiciary chairman, suggested another possibility. In the last Senate, he and Senate Majority Leader Bill Frist, Republican of Tennessee, co-sponsored Senate Resolution 138 to change Senate filibuster rules. It "would apply only to nominations," wrote Hatch, "and require a declining supermajority on successive cloture votes -- from 60, 57, 54, 51, and finally a majority of senators present and voting."
Republicans could enact this change by a simple majority vote when they first adopt the rules for the incoming Senate.
Whichever remedy the Republicans pick, they are now in a win-win situation, as long as they fight for Bush's nominees. Either the Democrats cave and confirm the president's picks, or they continue to obstruct democracy on the floor of the Senate and suffer the consequences in 2006.