Constitution on the Brink: Update on Emergency Campaign to Save the Filibuster and the Supreme Court

TO: Journalists
FR: Ralph G. Neas, President, People For the American Way and PFAWF

If there were ever any doubt that far-right leaders are counting on the “nuclear option” to blast a clear path through the Senate’s checks and balances for far-right Supreme Court nominees, Jerry Falwell erased them during a recent Crossfire appearance. Falwell looked across the table at me and said Senate Majority Leader Bill Frist told him that if the Democrats continue to block the worst of Bush’s judicial nominees, Frist will “impose the nuclear option…when that happens, you guys are dead in the water, and you ought to be.”

Since then, the clamor from the right-wing echo chamber of pundits and pressure groups has only grown, with many insisting that Frist and his allies deploy the “nuclear option” against judicial filibusters, obliterating more than 200 years of Senate history in order to ensure confirmation of President Bush’s judicial nominees.

The forces are gathering. Last month at the National Press Club, when asked the right-wing’s top three moral priorities, Pat Robertson replied, “Judges, judges, judges.” The Federalist Society, the legal and intellectual shock troops of the right-wing counterrevolutionaries, has retained the same media firm that prepared the smear campaign against John Kerry for Swift Boat Veterans for Truth – a clear signal that the far right will wage a win-at-all-costs campaign. The National Association of Manufacturers, the nation’s largest industrial trade association, has announced that it will be spending millions of dollars in support of President Bush’s nominations to the federal courts.

Frist and other GOP leaders are setting the stage for their irresponsible power play by planning to bring a series of extremely controversial judicial nominees to the Senate floor in early April. They would then use expected Democratic filibusters against some of those nominees as an excuse to deploy the nuclear option. This would be a devastating preemptive first strike in the coming battle for the future of the Supreme Court.

People For the American Way, People For the American Way Foundation, and our many allies in the Coalition for a Fair and Independent Judiciary are working hard to educate Americans about the importance of the filibuster to the Senate’s role in our constitutional system of checks and balances, and to the threat of the illegitimate power play being contemplated by Frist. The national coalition, which has been working together on judicial nominations for the past four years, includes, the Leadership Conference on Civil Rights, the Alliance for Justice, the NAACP, NARAL Pro Choice America, Sierra Club, MALDEF, MoveOn.org, AFL-CIO, National Women’s Law Center, Lawyers’ Committee for Civil Rights Under Law, Planned Parenthood, NAACP Legal Defense Fund, EarthJustice, Working Assets, the National Partnership for Women and Families, the National Organization for Women, True Majority, the Feminist Majority, the National Council of Jewish Women, and scores of others.

Fortunately, a number of principled Republicans – moderate and conservative – have also begun to voice their opposition to an abuse of power that would cause long-term damage to the Senate and the country. Columnist George Will recently confirmed his opposition to the “nuclear option,” while conservative former Sens. Malcolm Wallop and Jim McClure urged Republican colleagues not to “go nuclear” in a March 15 Wall Street Journal op ed. After weeks of bluster from Frist that he has the 51 votes he needs to sustain his parliamentary dirty trick, a March 23 Washington Times article challenged that assertion, reporting serious misgivings in the Republican caucus.

Presently, the vote on the nuclear option is too close to call, but I remain confident that a slim bipartisan majority will reject Frist’s damaging scheme.

Resources for Journalists

PFAW and PFAWF have issued more than 80 reports and other materials on the filibuster and other judicial nominations issues over the past several years, including Courting Disaster; Confirmed Judges, Confirmed Fears; in-depth pre-and post-hearing analyses of judicial nominees; and reports, edit memos and opinion pieces on a range of topics. These publications, along with brief fact sheets – on the filibuster and the nuclear option, what’s at stake in the battle over the Supreme Court, and the lower court judges re-nominated by President Bush – are available on People For’s Supreme Court campaign website: http://www.savethecourt.org.

An update of our Courting Disaster report, which analyzes the dissenting and concurring opinions of Justices Scalia and Thomas to document what would happen if the Supreme Court became dominated by justices who share their judicial philosophies, will be released in the coming weeks.

Among other recent publications are:

  • “No Defense for the “Nuclear Option,” a response to an article by Martin Gold and Dimple Gupta in the self-described conservative/libertarian Harvard Journal of Law and Public Policy. The article is reportedly the highlight of a briefing book prepared by Senator Frist and his allies in support of the nuclear option. Our analysis contains a point-by-point rebuttal of the article’s flawed arguments, including the flatly erroneous assertions by GOP leaders that recent Democratic filibusters of judicial nominees are unprecedented.
  • “The Nuclear Option in the Senate: A Preemptive Strike for Absolute Power,” a February 1st edit memo responding to a lengthy National Review column by Senator Hatch as well as floor remarks by Senator Frist and op eds in the Wall Street Journal attacking the Democrats’ use of the filibuster on judicial nominations and defending use of the nuclear option. Our memo re-frames the issues and exposes the stealth campaign the right wing is mounting to eliminate the 200-year old tradition of the Senate filibuster in order to clear the way for President Bush’s extremist nominees to the federal bench, and, ultimately, the Supreme Court.
  • A detailed report on Terrence Boyle, re-nominated by President Bush to the Fourth Circuit Court of Appeals, whose judicial record is marked by an unusually high percentage of decisions reversed by higher courts and a series of rulings that is damaging to individuals’ ability to have their rights protected in court. The report is downloadable at: http://www.pfaw.org/pfaw/general/default.aspx?oid=17979
  • An extensive letter renewing our opposition to Thomas Griffith re-nominated by President Bush to the D.C. Circuit Court of Appeals. This letter can be found at:
    http://www.pfaw.org/pfaw/general/default.aspx?oid=18100

PFAW also joined a coalition letter in opposition to the nomination of William Myers to the Ninth Circuit Court of Appeals. Myers’ single-minded pursuit of an agenda advancing the interests of grazing and mining industries at the expense of the environment and the rights of Native Americans and tribal governments raises fundamental concerns about his ability to be fair and impartial as an appellate judge. Moreover, as pointed out in the joint letter, available at http://interactive.pfaw.org/pdf/coalition_letter_myers.pdf, his radical views on property rights, individual rights, and federal government authority threaten basic safeguards that are critical to the concerns of millions of Americans. PFAW’s full report in opposition to the Myers nomination can be found here.

Communications

Editorial memoranda, other publications, and outreach by members of the coalition have provided information and analysis to journalists across the country. EarthJustice collects and updates editorials and commentary opposing elimination of the filibuster (more than 200 to date) at http://www.earthjustice.org/policy/judicial/commentary/filibuster_commentary.html.

People For the American Way Foundation, which helped support recent coalition polling on courts issues, is following up with additional research, and has just completed a groundbreaking nationwide poll of 1600 respondents conducted by the Marttila Communications Group. Among its findings:

  • The public supports efforts by Senate Democrats to filibuster nominees with radical right views;
  • The public supports preserving the filibuster to block such nominees and ensure that no one party controls all three branches of government; and
  • The public would oppose the appointment of a Supreme Court nominee who would roll back fundamental rights and liberties.

In addition to participating actively in ongoing coalition communications efforts, People For the American Way Foundation will be carrying out a multimillion dollar public education campaign around the filibuster, the nuclear option, and the Supreme Court.

Grassroots and Internet Organizing

A number of coalition members, including People For the American Way, are collecting signatures from Americans opposed to the nuclear option. Hundreds of thousands of Americans have signed these petitions and sign-on letters, and that number continues to grow.

During the President’s Day recess, activists participated in 27 in-state meetings with key Republican and Democratic senators and their staff members on the nuclear option and judicial nominations issues. During the current congressional recess, coalition members are working on the ground in 23 states to educate and energize activists about the threat of the nuclear option and the enormous stakes in the campaign to preserve the filibuster and the larger Supreme Court effort.

PFAW Foundation’s Young People For project is also activating its network of more than 120 Young People For 2005 fellows on 40 campuses in eight states. The filibuster and its importance to the Supreme Court are major components of dozens of on-campus training sessions being undertaken this spring. On April 8th Young People for is organizing a day-long “Filibusterathon” on the Howard University campus.

People For the American Way will continue to mobilize its 750,000 members and supporters, and has kicked off regular volunteer nights in our 2,500-square-foot Washington, D.C. war room, which is available to coalition partners. Volunteers are calling members and activists in states with key senators on the nuclear option, urging them to contact their senators and recruiting participants for upcoming constituent meetings and other events.

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