The Nuclear Option: GOP Leaders Should Just Say No

Posted April 5, 2005 at 2:57pm

The Senate Republican leadership claims that the phony “crisis” they have manufactured over judicial nominations is so serious that the only way to solve it is by using the “nuclear option.”

The option is “nuclear” because it will explode 200 years of Senate practice, destroy the role of the Senate as the Constitution intended it and poison the atmosphere of trust and basic respect for the rule of law that has enabled the Senate to function effectively.

In an important way, though, the term “nuclear” is a misnomer. During the Cold War, the nuclear option, except in the minds of a few Dr. Strangeloves, was the option of last resort — the ultimate weapon to be used only when all else had failed, when no other option would protect the nation and the world.

Today there is no unmanageable crisis that justifies a Republican nuclear attack on the Senate. The “crisis” is that President Bush is not happy that the Senate has declined to approve 10 of his judicial nominations, even though more than 200 others have been confirmed. He’s in good company. Presidents since George Washington have been upset when their nominations were not approved by the Senate. But the framers of the Constitution wanted it that way.

The system of checks and balances in the Constitution depends heavily on House and Senate resistance to the president when he acts arrogantly or unreasonably. The Senate was given a unique role over nominations, especially for the lifetime appointment of federal judges. In fact, the framers came close to giving the Senate exclusive power to appoint judges, and only at the last minute allowed the president to share in the process by nominating them. That’s why Senators are on solid ground when they fully exercise their constitutional power of advice and consent over judicial appointments.

Right-wing activists across the country have been salivating since the last election over the possibility that Republicans may now have enough votes in the Senate to confirm even the most extreme judicial nominees, and they are pressuring both the White House and Republican Senators to do whatever it takes to prevail, even if that means using the renegade nuclear option. Senate Majority Leader Bill Frist (R-Tenn.) is under heavy pressure to take that radical course.

Responsible Senate Republicans have a better alternative. Exercising their constitutional role of providing “advice” to the president, they can urge him to nominate judges who will uphold the basic rights and liberties so important to the American people, instead of picking political fights with the Senate by nominating extremist judges whose records give every indication that they will roll back those rights and liberties.

What the president and his supporters never mention are the reasons why Senators have challenged the handful of nominees who have been rejected. A few examples: Janice Rogers Brown, a California Supreme Court justice, suggested that anti-discrimination laws cannot be used to enjoin racial slurs in the workplace, questioned the value of laws barring age discrimination, and expressed open hostility to basic government regulation, declaring that government leads to “families under siege” and “war in the streets.”

William Pryor has argued that the Supreme Court should cut back on laws protecting civil rights, voting rights and the environment. Carolyn Kuhl ruled it’s not an invasion of privacy for a doctor to allow a male drug salesman to sit in on a female patient’s medical exam. And William Haynes, whose first nomination was never called up by Republicans for a vote, was a principal architect of the administration’s torture policy. Federal judges serve for life, and Senators have a solemn duty to ensure that nominees are qualified to serve in these important positions.

Proponents of the nuclear option claim that reasons for unlimited debate apply only to legislation, not to nominations. Unfortunately for them, history proves that argument false. The Constitution specifically gave the Senate the power to make its own rules. Until 1917, unlimited debate was considered so vital to the Senate’s role that its rules provided no way at all to end debate. From 1917 on, the rules allowed a two-thirds vote by the Senate to end debate on legislation, but not on nominations. Not until 1949 did the rules allow debate to be stopped on nominations, and it requires a three-fifths vote by the Senate — 60 Senators — to do so now.

This debate is fundamentally about respect for the rule of law. As a nation, we expect Americans to obey the rule of law. As their representatives, the Senate must also live by the rule of law.

We are a democracy, not a dictatorship. It’s a flagrant abuse of power if Republicans violate the rules of the Senate to make it easier to rubber-stamp the president’s judges. There is a right way and a wrong way to change the Senate rules.

As a doctor, surely Frist understands the basic principle, “First, do no harm.” If he attempts the “nuclear option,” he will be harming our democracy. He will violate the rule of law and wipe away 200 years of respect for the fundamental constitutional provisions clearly intended to prevent tyranny by a narrow Senate majority and clearly intended to protect the voice of Senators who feel strongly that the president is off-base in his nominations to lifetime federal judgeships.

Unlike legislation, the confirmation of a judge cannot be reversed by a later Senate. The need for extended debate is therefore even greater for judicial nominations than for legislation, which can be amended if Congress subsequently decides that it was mistaken.

What we face today is an artificial crisis manufactured by the White House and a few Republican Senators for the purpose of satisfying the most radical elements in their party who dream of placing judges in their own image on the most powerful courts in the land, no matter what the cost to the historical role of the Senate or the damage to the balance of powers at the heart of our Constitution and our democracy.

There is still time for the White House and Republican Senators to pull back from this constitutional brink and reject a tactic that will prove only that “power corrupts, and absolute power corrupts absolutely.”

Sen. Edward Kennedy (D-Mass.) is a member of the Judiciary Committee.