Introduction

On May 6, 2003 the Senate Judiciary Committee’s Constitution, Civil Rights and Property Rights Subcommittee held a hearing that focused on, among other things, “when a majority is denied its right of consent.” That hearing – like another one scheduled for June 6 in the Senate Rules Committee – was an attempt to grant legitimacy to the absurd notion that filibusters against judicial nominees are unconstitutional and that the Senate should change its very nature as the more deliberative house of Congress so that the narrow GOP majority could ensure approval of even the most extreme Bush administration judicial nominees.

In a Rose Garden speech on May 9, 2003 President Bush repeated his call for an end to the current judicial “crisis.” He pushed for a plan that would allow an “up or down” vote for all nominees. This leaves vague the question of whether he would support Senate Republicans, should they choose the “nuclear” option of abusing their majority power to force unilateral changes in violation of longstanding Senate rules and traditions concerning such changes.

Despite the rapid approval rate that Bush’s nominees have enjoyed, Senate Republicans are outraged that even two nominees have been blocked. The GOP, seething because Democratic Senators refuse to rubber-stamp Bush’s controversial nominees, have proposed to change Senate rules by declaring the filibuster to be an unconstitutional means for opposing judicial nominations. The “nuclear” option undermines the checks and balances so carefully included in our Constitution. With a closely divided Congress and indeed, country, the filibuster is an important safeguard that is not to be treated lightly. As Senator Hatch noted in 1994, the filibuster is “one of the few tools that the minority has to protect itself and those the minority represents.”

If by “going nuclear,” Senate Republicans mean to act in an unprecedented and dangerous manner that will have far reaching consequences, then the term is appropriate. Many commentators from across the political spectrum agree that such an action is not only unwarranted, but also unnecessary.