Widespread Opposition to the Nuclear Option

Norm Ornstein, a respected political analyst with The American Enterprise Institute , offers this word of caution to Senate Republicans in The New York Times, on May 14, 2003, “If Republicans unilaterally void a rule they themselves have employed in the past, they will break the back of comity in the Senate. Democrats could block Republican legislative efforts at every turn. For a short-term victory now, Republicans would reap the whirlwind.”

National Journal columnist Stuart Taylor wrote on May 27, 2003 that “resorting to the nuclear option would drive the last nail in the coffin of Bush’s pledge to be a uniter, not a divider. It would also be bad for the country, which needs less partisan warfare, not more.” Taylor said that fallout from the nuclear option would “would bring partisan bitterness to a nadir unseen in recent history,” and he urged President Bush to engage in consultation and compromise with Senate Democrats on judicial nominations.

Writing in the Washington Times on May 13, 2003, conservative legal commentator Bruce Fein also urged Republicans to seek a compromise solution rather than engage in the nuclear option. “But statesmanship that subordinates partisan advantage to the nation when a constitutional abyss approaches carries its own reward. Republicans need to think not only of the living but of the dead and those yet to be born in contemplating whether to risk partisan political vendettas reminiscent of the Montagues and Capulets. The Constitution will capsize in the long run without a modicum of procedural consensus and goodwill between the parties.”

Wall Street Journal columnist Al Hunt wrote on June 5, 2003 that “if a Republican majority, with one or two Democrats, tries to ram through a politically expedient dramatic change in the way the Senate does business – they can claim it’s limited to judicial nominations now but a precedent would be set – it will destroy whatever comity is left in the institution.”

On March 17, 2003, Mary Lynn F. Jones observed in a special web-feature for The American Prospect, “When most people don’t like the rules of a particular game, they either complain that the rules are unfair or they quit the game altogether. Not President Bush. He just changes the rules.” She continued:

    Bush doesn’t like the fact that Democratic senators are filibustering Estrada’s nomination. So he suggested changing the rules to ‘ensure timely up-or-down votes on judicial nominations both now and in the future, no matter who is the president or what party controls the Senate.’ According to the Senate’s Web site, filibusters have been around since the early days of Congress and have been popular since the 1850s. It’s hard to remember the last time a president suggested that the Senate change one of its oldest traditions. There have been plenty of presidents who haven’t liked congressional rules, but that doesn’t mean they’ve suggested changing them just to accomplish one goal.

    Both examples show that Bush has little respect for either the press or for Congress. He sees both as obstacles that can get in the way of his agenda, and he doesn’t like the checks-and-balances role that each plays (in terms of popular opinion or government).

On May 27, 2003, Adam Cohen took a similar stance in an op-ed for The New York Times, “The Republicans’ attack on the rules [comes] at a time when they could easily afford to take a higher road. They have, by virtue of their control of the White House and Congress, extraordinary power to enact laws and shape the national agenda. And this administration is already getting far more of its judges confirmed, and more quickly, than the Clinton administration did.”

Chicago Tribune columnist Steve Chapman points out that if Senate Republicans wish to abolish the filibuster because it interferes with majority rules, then they must have qualms with a number of congressional procedures that do the same. In a May 23, 2003 column appearing in The Baltimore Sun, he wrote: “Neither the House nor the Senate has ever operated by strict majority rule, and they probably couldn’t if they tried. But if the filibuster were to be junked as an affront to democracy and the Constitution, lots of other customs would be in jeopardy. To overcome a transient political inconvenience, Republicans propose to jettison a Senate practice that has grown up and evolved over 214 years, replacing it with a simple policy that the majority must always have its way. There are lots of terms you could use to describe that effort. But conservative isn’t one of them.”

Michael J. Gerhardt noted that there are other options open to Bush and the Senate Republican leadership in the May 12, 2003 edition of the Legal Times. “If the majority’s will is frustrated, the president and those who have supported his contested nominations can either exact revenge through the political process or seek common ground to resolve their differences with a substantial minority of their colleagues. Whichever path they follow is constitutional, just as constitutional as the filibuster itself.”

Scholars, columnists and pundits from across the political spectrum have decried the move by GOP leaders to abolish the filibuster as unjustifiable and short-sighted. Similar editorials and op-eds endorsing filibusters to varying degrees have appeared in the following papers:

  • “Why We Need the Filibuster,” Chicago Tribune; May 27, 2003
  • “Get Judicial Process Out of the Mire,” The Berkshire Eagle, May 7, 2003
  • “Coup in the Courts,” San Jose Mercury News, May 21, 2003
  • “It’s Right to Filibuster,” The Capital Times, January 23, 2003
  • “Busting a Filibuster: Don’t Change the Rules,” Pittsburgh Post-Gazette, May 21, 2003
  • “Senate Right to Filibuster Bush Appointees,” Mustang Daily, May 20, 2003
  • “Our View: Look at the Facts,” The News Journal, May 15, 2003
  • “Filibusters,” The Clarion-Ledger, May 13, 2003 (Filibusters)
  • “Bush Picks Extreme Agenda for Courts,” Patriot-News, May 12, 2003,
  • “Injustice For All,” San Francisco Chronicle, May 11, 2003
  • “Why Kuhl Is Uncool,” Joe Conason’s Journal (Salon.com), May 9, 2003
  • “Off Message Again,” Newsweek (Web Exclusive), May, 9, 2003
  • “Balancing Judges,” The Boston Globe, May 6, 2003
  • “Filibustering Priscilla Owen,” The New York Times, April 17, 2003
  • “Hold Firm on Estrada,” The New York Times, March 13, 2003
  • “Blocking a Bad Choice,” The Capital Times, March 11, 2003
  • “Partisanship Is a Democratic Duty,” Minnesota Daily, February 17, 2003
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