GOP May Go 'Nuclear' On Judges

By David Paul Kuhn,
CBSNews.com chief political writer

The option has not been utilized since 1975. It is so likely to divide the Senate along the strictest of partisan lines that in Washington parlance it is being referred to as "going nuclear."

Nevertheless, Republicans are increasingly intent on taking such action if Democrats utilize filibusters to block Supreme Court nominations, likely to begin as soon as next year.

With Chief Justice William Rehnquist ailing with thyroid cancer and absent from the bench, the highly contentious face-off of Supreme Court appointments has gone from hypothetical to probable. At least two other Supreme Court justices are considered likely to retire in President Bush's second term.

Changing the Senate rules to require an up-or-down vote, 51 senators, would disable what little influence Democrats maintain over judicial appointees. Currently, a filibuster -- when senators speak on the floor to delay congressional action -- can only be ended with a supermajority, 60 senators' support.

Under President Bush, 201 federal judges were approved. Ten others were blocked by Democrats. But for the GOP and their emboldened social conservative wing, that's ten too many.

Senate Majority Leader Bill Frist, R-Tenn., said on Sunday that Democratic use of the filibuster to stall judicial nominations was "intolerable." He added that a "viable option" would be for Republicans to move for the filibuster to be limited to legislation.

Speaking on "Fox News Sunday" Frist said, "It's the first time in over 200 years that candidates who have majority support, more than 50 votes, were denied an up-or-down vote on the floor."

But congressional records show that the minority party, both when Republican and Democratic, utilized "procedural devices," as one Senate official put it, to deny the majority an up-or-down vote on judicial appointments.

Yet the problem is worsening with each White House administration, says John Lott, who studies legislative behavior at the American Enterprise Institute.

"Nobody has completely clean hands here," Lott said. "It's just that you've got to draw a line and it's exploding. ...Each time you get a new administration in there, it's worse than it was before."

The percent of federal judicial nominees confirmed under Jimmy Carter was 93 percent; under Ronald Reagan, 89 percent; under George H.W. Bush, 78 percent; under Bill Clinton, 74 percent; and in President Bush's first term it was 69 percent, according to Lott's research.

The bold Republican action, extremely rare by historical measure, reflects their control of all three branches of government.

After gaining four more Senate seats for a total of 55, and President Bush declaring a "mandate" following his majority win, the GOP is prepared to undercut the Democratic minority's last tangible recourse on judicial appointments.

There is no issue, among evangelicals, that matters more than judicial appointments. Frist's comments Sunday were applauded by social conservatives.

"This is not something where Bill Frist woke up the day after the election and said let's go nuclear. They have options and one of them is making the judgment that now is the time for the rules change," said Carrie Gordon Earll, senior policy analyst for the influential evangelical organization Focus on the Family.

A lot of the debate concerns how strictly the U.S. Constitution, written more than 200 years ago, should be applied to current day events. Conservatives believe a "strict constructionist" reads the Constitution literally, leaving all issues unmentioned to the states.

President Bush has characterized his judicial agenda along constructionist lines. For example, a "strict constructionist" would refer abortion to the states and thereby overturn Roe vs. Wade, the landmark case that legalized abortion nationwide.

"The president's agenda for influencing the court with reasonable constructionist should not be thwarted by rules to deny an up-or-down vote," Earll said. "The behavior of some Democratic Senate leaders in the last Congress has forced it to come to this."

Sen. Charles Schumer, D-N.Y., addressed the possibility of a Republican rules change Sunday on ABC's "This Week," saying the action would "end any hope of comity" among Democrats and Republicans.

The most likely attempt to change Senate rules will come if Vice President Dick Cheney, as president of the Senate, rules the practice of utilizing filibusters to block judicial nominees to be against Senate parlance. A 51-vote majority would uphold Cheney's ruling.

"To shut off debate, the Senate has always required a super majority," Senate historian Richard Baker said, noting that there was a brief period where a majority vote was enacted mid-century.

"Historically speaking," he continued, a senator's ability to take to the floor to stall the majority's legislation "is one of the most treasured rights of a United States senator."