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February 16, 2005

Confirm Them

I have disagree with Jim, my much wiser (and elder - heh) colleague, regarding use of the nuclear option. Jim wrote,

We should be careful seeking rule changes that serve immediate political goals but may be dangerous for long term protection of the power of the political minority. I’m not ready to assume that the current domination by the Republican Party will last.
If the Dems were in our position right now, they would not hesitate to go nuclear. The Dems have already done it - four times in the 1970s and 1980s.

From one article on the subject:

As Senate Majority Leader Mike Mansfield (D-MT) said at the time: "We cannot allow a minority" of the senators "to grab the Senate by the throat and hold it there." Senators Leahy, Kennedy, Byrd, and Biden, all agreed. Nearly a decade ago, Lloyd Cutler, the former White House Counsel to Presidents Carter and Clinton, concluded that the Senate Rule requiring a super-majority vote to change the rule is "plainly unconstitutional."
Had the Dems had fewer votes, they would have changed the cloture threshold from 67 to whatever number they so desired; but they only needed to lower the threshold from 67 to 60 and so they did. They have established the precedent and the philosophy for breaking the filibuster rule.

Republicans have never filibustered nominees to the circuit court of appeals. The Dems filibuster of Bush's circuit court nominees was unconventional and unprecedented. The right response to an unconventional attack is nuclear.

Confirm Them is the best resource for information and commentary on the Senate confirmation debate. Bookmark the site and refer to it often.

Posted by Rick at February 16, 2005 09:40 AM

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You need to stop listening to Hugh Hewitt so much. Just because the Democrats would or have used the "nuclear" option does not make it right for the Republicans to follow suit. Someone needs to put their foot down and say "no more". We need to get away from the idea of placing party before principle because principle is really the only thing we can stand on.

Posted by: Tom B. at February 16, 2005 12:18 PM

Tom, in my view, the Consitution does not allow a minority of the Senate to block the President's nominees from getting a confirmation vote in the Senate. The Constitution establishes clear parameters for when a super majority is required and therefore I (and many others besides Hugh) argue that it was not the intent to require a super majority to obtain a vote on judicial nominees. My basis of support for the nuclear option is much more than political expediency.

I am not putting Party in front of principle. The extent to which I care about the Party is limited to its efficacy in moving an agenda forward.

Therefore the principled basis for my advocacy of the nuclear option is twofold: 1) It's more consistent with the Constitution; and 2) The institution of the Judiciary must be saved from activist and unaccountable judges.

We have here an opportunity to place on the Bench judges that will serve our nation well for 20+ years. I put those principles above an arcane Senate rule that the opposition has demonstrated the willingness and ability to weaken on four previous occasions.

Posted by: Rick Brady at February 16, 2005 12:39 PM

Well, you made some good points. I guess have a visceral repulsion to anything that even remotely smacks of partisan political maneuvering, or as Hugh would say "principled pragmatic partisanshi." No matter what you call it, it still seems like putting lipstick on a pig.

Posted by: Tom B. at February 16, 2005 01:49 PM

Your analysis seems correct that this is not a "desperate times call for desperate measures" move on the part of the Senate Republicans. It is a move to restore a Constitutional process that has been hijacked by the obstructionist tactics of the Democrat members of the Senate.

Once again, they display amazingly short memories regarding their own rhetoric and past actions when it comes to "allowing a minority to grab the Senate by the throat..." Thanks for the reminder.

Posted by: RLG at February 16, 2005 02:03 PM

I can't help but think that if the shoe were on the other foot, and the Democratic majority were about to change the rules in this way, you would be registering howls of protest. The political game is a dirty one which is why Christians are advised to steer clear of it.

Posted by: Tom B. at February 16, 2005 03:46 PM


Perhaps you are right, but my opposition at that point would not be political. I would be coming at it from a different perspective. Different scenarios require different tactics to achieve an end. In some cases, there are many acceptable means to an end. Some people label that as being weak on principle, which it can be in some circumstances; but in other circumstances, it can be viewed as wise.

Why do you suppose Paul at Mars' Hill did not tell the Athenians that the many Gods that they worshiped were false and that if they didn't cast down their idols and turn to the True and Living God they would burn in Hell? Wouldn't you think that would be the "principled" response? He was a bit soft on "principle" when speaking to the Athenians compared to how he spoke to others about the Gospel (see Romans), don't you think? I suspect that Paul went "soft" because it was the wise thing to do at that moment to effect an end. He was exemplifying one who is wise as a serpent. Same end, different means.

I still think the Senate rule is unconstitutional as it applies to judges, although it is up to the Senate to decide whether it is unconstitutional. If the Court decided the constitutionality of the rule, there would be separation of powers issues that would make me uncomfortable.

So, you see, I have both principled and pragmatic reasons for going nuclear. But neither are political. When the circuit courts overturn a law banning partial birth abortion, a law that was passed with supermajorities in the House and Senate, the "protection of minority" opinion in the Senate goes out the window. This isn't politics. This isn't a game. This is confronting evil. Confirm Them.

Posted by: Rick Brady at February 16, 2005 04:14 PM

I guess, I tend to think that the right thing is still the right thing even if it hurts me at some point. Those who creatively circumvent the original rules have developed this way of dealing with that which they do not control. It is wrong. It would be wrong if the Republicans did it. The voters, for good or bad, place people within our Senate. That is what makes us a democracy. If those who have a clear minority are able to subvert the decisions of the clear majority, they are going against the predominate wishes of the voters of this country. That is wrong. If either group Dems or Republicans is able to subvert the wishes of the people for too long, we cease to be the government of the people, by the people and for the people.

Posted by: Paula Whidden at February 16, 2005 06:28 PM

I can't help but think that if the shoe were on the other foot, and the Democratic majority were about to change the rules in this way, you would be registering howls of protest. The political game is a dirty one which is why Christians are advised to steer clear of it.

Posted by: Motivation at September 3, 2006 06:47 PM