The Supreme Court and the Nuclear Option

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To: Senate Republicans
From: Jude Wanniski
Re: Don't Mess with The Filibuster

the high likelihood that President Bush will soon be nominating
a Supreme Court Justice for your advise and consent, it's clear
you need to get the rules of the road straightened out now in the
voting on lesser court nominations. I haven't paid any attention
to the debate over the so-called u201Cnuclear optionu201D until now, on
the supposition that it would be a waste of my time during the months
before a decision has to be made. It now looks like you will face
that decision in the next two weeks, so I thought I'd put in my
two cents. I suggest you leave the filibuster alone and permit the
Democrats, if they so choose, to vote on a party line in order to
use their 44 votes to kill a nomination via the filibuster route.
This of course requires you to get 60 votes to put across the nomination,
with a solid 56 votes on your side and four Democratic votes.

hold it a minute. It seems downright silly that it has come down
to the theoretical possibility that the President will nominate
someone who will not get ANY Democratic votes and get ALL the Republican
votes. That would really indicate a complete breakdown in the way
the Senate is supposed to work on judicial nominations or presidential
nominations of any kind. I've noted before that – in my 40
years covering politics, as a journalist or as a student of the
political economy — I've never seen more partisanship in the Congress
than exists today. It would be nice if Senators on both sides of
the aisle could follow the counsel of your Judiciary Chairman, Arlen
Specter of Pennsylvania, and be free to vote their opinion without
instructions from the leadership. We'd still naturally expect the
nominee of a GOP President to get most of his/her votes from your
side of the aisle, but would also expect to see some defections
on both sides because of different judgments in the world's greatest
deliberative body. The greatest beneficiary would be the nation.

is more or less true, as Sen. Chris Dodd [D CT] points out, that
the founders arranged things so the Senate would represent the interests
of the minority and the House would represent the interests of the
majority. At least it has worked out that way. When I was a young
reporter in Washington in the 1960s, at times covering the U.S.
Supreme Court and the judicial branch in general, I came to think
that it would not be good for the country if the High Court in particular
was weighted too heavily on the side of liberals or conservatives.
Admittedly, this is part of my political background, as I spent
my youth as a liberal Democrat and evolved into what I came to call
myself as a progressive, conservative Republican.

back then I kept hearing from conservative u201Cwise menu201D about the
Pendulum Swing of history, i.e., that the tastes of the national
electorate would swing from conservative to liberal and back again
over a track of time. To tell you the truth, I thought this was
all wishful thinking on the part of Republicans, but now that I
am 40 years old, and wiser, I do believe in the Pendulum Swing.
And it makes sense, actually showing up more or less in the writings
of Ibn Khaldun in the Middle Ages. In other words, if Khaldun were
alive today, I think he would look over the situation, with the
United States at the top of the world, and he would suggest that
it could be the Senate filibuster made it possible. He'd see that
at critical points in U.S. history, a minority in the Senate could
restrain the majority from making one step too many in a direction
that could fatally damage the nation with that kind of excess.

other observation I have, Senators, is that ultimately the national
electorate always has the power to step in as a check on an exercise
of power you may find in a change in the rules. That is, the pendulum
that has swung in your direction could be swinging against you a
lot sooner than you might imagine. That is, if you deploy the Nuclear
Option to stuff the President's nominees down the throat of the
Democratic minority, the national electorate may not even wait to
see how the nominee performs from the bench, but will become sufficiently
concerned at your behavior to make changes in the Senate in 2006,
and with the presidency in 2008.

of the wisest of journalists in Washington, David Broder of The
Washington Post, today recommends
a compromise
to prevent blows being struck in the Senate. His
suggestion leads to the idea of taking the seven federal court nominees
in the waiting line and negotiating a compromise, where Democrats
agree to allow some to come to a straight up-and-down vote in exchange
for permitting filibusters on those they consider u201Cextreme.u201D I notice
that Sen. Joseph Biden [D-DE] picked up on the suggestion this morning
on one of the talk shows and indicated he personally would buy it.
You should, I think, take him up on it and give Senator Specter
a little leeway in working things out. It would be great to have
the Senate working like it did back in those good old days.

25, 2005

Wanniski [send him mail]
runs the financial/political advisory service

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