What the Founders warned against

The nuclear option is just the latest maneuver by a party still seeking absolute power.

Published May 12, 2005 4:38PM (EDT)

To understand the Republican determination to detonate their "nuclear option" on the floor of the U.S. Senate, it is important to consider recent political history as well as posturing and parliamentary technicalities. Republican leaders have raised questions about the Senate's constitutional role in providing "advice and consent" for presidential appointees not only with respect to appellate judges but with regard to the controversial nomination of John Bolton as U.N. ambassador.

Now that they control both the White House and the Senate, they seem determined to enforce a majoritarian absolutism they would have deplored a few years ago -- when they were in the minority. Suddenly, the White House and the Senate Republican leadership are insisting that the highest principle is presidential prerogative and a nominee's "right" to an "up or down" vote. Justifying this position has required them to engage in repeated deception about the history of the filibuster, their own voting records, their treatment of judicial and executive nominations by previous presidents, and the very concept of majority rule.

What is truly at issue for Republicans in these debates is not constitutional principle but absolute power -- and their continuing drive for total domination is itself offensive to the most basic constitutional principles and the intentions of America's Founders.

The simple truth is that Republicans not only have not hesitated to use the filibuster against Democratic nominees but were the first to mount a filibuster against a judicial nominee to the Supreme Court, when they filibustered President Johnson's elevation of Abe Fortas to chief justice as a replacement for the retiring Earl Warren.

Argued most aggressively by the likes of Strom Thurmond, Republicans' objections to the Jewish and liberal Fortas combined pure political opportunism, ideological objections and ethnic prejudice with at least a veneer of genuine ethical concern. Today the issues surrounding the late justice matter less than the way in which his nomination was resolved. When Johnson was unable to muster 60 Senate votes to end the filibuster, Fortas asked the president to withdraw his nomination.

Among the leaders of the Fortas filibuster, ironically, was Sen. Robert Griffin, R-Mich., father of Richard Griffin, one of the judicial nominees subject to the Democratic filibuster under Bush.

Now Republican Senate leaders and their apologists claim that the filibuster against Fortas wasn't really a "bad" filibuster because his nomination didn't have the votes to prevail in an up-or-down vote on the Senate floor. This is the kind of logical contortion that reveals a dishonest purpose. If Fortas was subject to defeat on the floor, why bother with the filibuster? In fact, as American Enterprise Institute expert Norman Ornstein and other historians have pointed out, most senators supported the Fortas nomination.

According to Ornstein, "it was clear that Fortas had majority support in the Democratic Senate, and it was equally clear that Robert Griffin, to prevail, would filibuster." The filibuster faction had declared its intention to stop Fortas during the first stage of hearings in the Senate Judiciary Committee, where Sen. Griffin explained the limitations of presidential prerogative. "He's only got half the power," the Michigan Republican said of Johnson. "We've got the other half and it's time we asserted ourselves."

And neither he nor his fellow Republicans cared that they were in the minority. When the test came on the Senate floor, there were only 43 votes to sustain the filibuster, against 45 for cloture. But that was enough to stop Fortas.

Flash forward to the presidency of Bill Clinton, when Senate Republicans often used every technique at their disposal, including the filibuster, to deny an up-or-down vote to both judicial and executive nominees. They felt no particular obligation to uphold Clinton's right to his own nominees.

And now, as Senate majority leader, Bill Frist is running around the country, sucking up to religious extremists and pretending that he has never supported a judicial filibuster. But in fact Frist, and a host of other Republicans, including Judiciary Committee chairman Arlen Specter, R-Pa., voted to filibuster the U.S. District Court nomination of Richard Paez. (During the floor debate over the nuclear option, listen for stentorian addresses by GOP Sens. Bunning, Craig, DeWine, Enzi, Inhofe and Shelby -- all of whom voted to filibuster Paez.)

A number of Republican senators also voted to filibuster Clinton nominee Marsha Berzon. And many more voted to indefinitely postpone the Paez and Berzon nominations -- which had precisely the same effect -- after the filibusters failed.

The same principle, or lack thereof, can be found in the history that precedes the Bolton controversy. If and when Bolton's nomination is approved, the moderate Republican senators who vote for him will cite the president's right to his own appointees, despite their doubts about the man's character, competence and ideology. Yet that principle didn't obtain when Clinton sent up ambassadorial and executive nominees disliked by GOP senators. They filibustered a dozen of Clinton's choices, all of them eminently qualified on the merits.

Republicans will reply that the filibuster is a legitimate tool in deliberations over executive nominees, but not judges. They will insist that Democratic obstruction of the current president's judicial choices is "tyranny of the minority" that democracy shouldn't countenance.

Those arguments, however, ignore two of the most salient facts about our system. First, federal judges are appointed for life. They should be subject to much more searching scrutiny than temporary appointments to the executive branch. In choosing judges the president should consult with senators of both parties and seek consensus rather than conflict whenever possible. It is quite clear that Bush is seeking to pack the courts with extremists such as Priscilla Owen, whose judicial activism offended his own counsel and now Attorney General Alberto Gonzales.

Second, the Senate is not apportioned according to population and, in the absence of preventive instruments such as the filibuster, can easily enforce a true tyranny of the minority. At this point, the senators from the nation's 26 smallest states could enforce their will in the Senate with 52 votes, even though they represent less than 20 percent of the nation's population. The 44 Democratic senators represent several million more Americans than their 55 Republican colleagues. And in the 2004 elections, Democratic Senate candidates received about 3 million more total votes than Republican Senate candidates -- even though Republicans expanded their majority in the Senate itself.

The struggle against the "nuclear option" is a fight over democratic and constitutional issues, but not in the sense claimed by Frist and Bush. The nuclear option is the latest maneuver by a party seeking absolute, permanent, unchallengeable power -- and doing so in the interest of a political-religious faction. Such a partisan juggernaut is not what the Founders intended. It is instead exactly what they warned us against, if we hoped to preserve their legacy of liberty.

By Joe Conason

Joe Conason is the editor in chief of NationalMemo.com. To find out more about Joe Conason, visit the Creators Syndicate website at www.creators.com.

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