News Intelligence Analysis
From the New York Times
May 21, 2005
On the 'Nuclear' Brink
The judicial nominations debate reached a new low this week when
a Republican senator compared his Democratic colleagues to Hitler.
This rampage by the Republican majority, driven by a zeal to
eliminate the Democrats' voice in the appointment of judges,
poses a real danger of permanently damaging the system of checks
and balances at the heart of American democracy. It is encouraging
that moderates from both parties are trying to work out a compromise.
But they should agree only to one that does not make unacceptable
concessions on Senate procedures and does not lead to the appointment
of unqualified, ideologically extreme judges.
The Senate has confirmed a vast majority of President Bush's judicial nominees, but Democrats have used the filibuster to block a handful. This is nothing new. In previous Congresses, Republicans blocked many Democratic judicial nominees, and Senator Bill Frist, the majority leader, participated in a filibuster of a Clinton appeals court nominee. Now that the Republicans are in the majority, however, they are threatening to use the "nuclear option," which would declare the filibuster null and void for judicial nominations.
The Republican attack is deeply misguided. There is a centuries-old Senate tradition that a minority can use the filibuster to block legislation or nominees. The Congressional Research Service has declared that the nuclear option would require that "one or more of the Senate's precedents be overturned or interpreted otherwise than in the past."
As a showdown nears, the Republicans' words have grown uglier. The Hitler reference came on Thursday, when Senator Rick Santorum of Pennsylvania compared Senate Democrats to the Nazi occupiers of France. So it is a wonder that moderate senators from both parties, dubbed the "gang of 12," have kept trying to reach a compromise.
There are two things the compromise must do, however, for it to be worth making. First, it must take the nuclear option off the table. The filibuster protects minority rights, and senators like Susan Collins, a Maine Republican in the gang of 12, should recognize the importance of that principle. It is the reason that senators from sparsely populated states like hers were given a vote equal to that of senators from densely populated states.
Second, no compromise should allow unworthy nominees to be confirmed. Some of Mr. Bush's nominees, like Janice Rogers Brown and Priscilla Owen, are hard-right ideologues who would do serious damage to the law and to the parties who appeared before them. Democrats should agree only to a deal that would still allow them to block the worst nominees.
Without a compromise, there could be a dramatic vote on the Senate floor. The American people strongly oppose the nuclear option, according to recent polls, because they see it for what it is: rewriting the rules to trample the minority. Unfortunately, the far right wing of the Republican Party has been driving the debate. In the end, the balance of power may well lie with a very few moderate Republicans: Ms. Collins, Arlen Specter of Pennsylvania and Chuck Hagel of Nebraska. We hope that they have the courage to stand up to the leaders of their party.
Copyright 2005 The New York Times Company
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