If It's Called the Nuclear Option, It Must Be Dangerous

When I first heard the phrase “nuclear option” in relation to the U.S. Senate, I assumed it had to do with one of two things: arms control in countries such as North Korea or a new energy policy that would depend on nuclear energy instead of oil for the production of electricity.

But no. The actual “nuclear option” is much less constructive and much more frightening than either of these options. The nuclear option would change the rules on filibuster of judicial nominees so that it could be ended by a simple majority. It is a way for Senate Republicans, who realize the temporary state of their total government majority, to use that fleeting power to leave a permanent impact on the judicial system. Long after the Republicans have lost the presidency and/or the majority in Congress, Priscilla Owen will still be requiring pregnant women to hear religious arguments about abortion, ruling in favor of her corporate campaign contributors, and siding against rape victims.

In over 200 years of Senate history, the rules have never been changed. Ever wonder why? Senators in the past were foresighted; they realized that filibusters are a pain when you are in the majority, but they come in quite handy when you are not. Note that Bill Frist, the leading proponent of nuking the Senate, participated in a filibuster of Richard Paez, a Clinton nominee. In fact, Republicans successfully blocked 60 of Clinton’s judicial nominees. (Democrats have blocked only 10 of nearly 200 Bush nominees to date.) The Democrats bemoaned the filibuster in the 90's…but they did not change the rules. Why not? Because they realized that a day would come like today, when they are in the minority and Priscilla Owen is up for confirmation.

The blatant disrespect for the constitution, for Senate history, and for the rights of moderate Americans worries me tremendously. But what also worries me is what might happen after the nuclear explosion has taken place. There are currently only 7 justices under scrutiny. But what happens when the President no longer has to come up with nominees that are “moderate enough” to get 60 votes? How many potential nominees has the President passed over because he thought them too right-wing to be confirmed? How many of these would now take to the bench, with their free pass through the Senate guaranteed?

This will give Karl Rove a chance to turn U.S. Courts into conservative judicial activism machines, just as he did the Texas Supreme Court. But Conservative Judicial Activism?! Don’t Conservatives oppose Judicial Activism? Only when the verdict goes against them. And with Priscilla Owen on the bench, it never will.