The Supreme Court & the Nuclear Option Jude Wanniski April 24, 2005

Memo To: Senate Republicans
From: Jude Wanniski
Re: Don’t Mess with The Filibuster

With the high likelihood that President Bush will soon be nominating a Supreme Court Justice for your advise and consent, it’s clear you need to get the rules of the road straightened out now in the voting on lesser court nominations. I haven’t paid any attention to the debate over the so-called “nuclear option” until now, on the supposition that it would be a waste of my time during the months before a decision has to be made. It now looks like you will face that decision in the next two weeks, so I thought I’d put in my two cents. I suggest you leave the filibuster alone and permit the Democrats, if they so choose, to vote on a party line in order to use their 44 votes to kill a nomination via the filibuster route. This of course requires you to get 60 votes to put across the nomination, with a solid 56 votes on your side and four Democratic votes.

But hold it a minute. It seems downright silly that it has come down to the theoretical possibility that the President will nominate someone who will not get ANY Democratic votes and get ALL the Republican votes. That would really indicate a complete breakdown in the way the Senate is supposed to work on judicial nominations or presidential nominations of any kind. I’ve noted before that -- in my 40 years covering politics, as a journalist or as a student of the political economy – I’ve never seen more partisanship in the Congress than exists today. It would be nice if Senators on both sides of the aisle could follow the counsel of your Judiciary Chairman, Arlen Specter of Pennsylvania, and be free to vote their opinion without instructions from the leadership. We’d still naturally expect the nominee of a GOP President to get most of his/her votes from your side of the aisle, but would also expect to see some defections on both sides because of different judgments in the world’s greatest deliberative body. The greatest beneficiary would be the nation.

It is more or less true, as Sen. Chris Dodd [D CT] points out, that the founders arranged things so the Senate would represent the interests of the minority and the House would represent the interests of the majority. At least it has worked out that way. When I was a young reporter in Washington in the 1960s, at times covering the U.S. Supreme Court and the judicial branch in general, I came to think that it would not be good for the country if the High Court in particular was weighted too heavily on the side of liberals or conservatives. Admittedly, this is part of my political background, as I spent my youth as a liberal Democrat and evolved into what I came to call myself as a progressive, conservative Republican.

Way back then I kept hearing from conservative “wise men” about the Pendulum Swing of history, i.e., that the tastes of the national electorate would swing from conservative to liberal and back again over a track of time. To tell you the truth, I thought this was all wishful thinking on the part of Republicans, but now that I am 40 years older, and wiser, I do believe in the Pendulum Swing. And it makes sense, actually showing up more or less in the writings of Ibn Khaldun in the Middle Ages. In other words, if Khaldun were alive today, I think he would look over the situation, with the United States at the top of the world, and he would suggest that it could be the Senate filibuster made it possible. He’d see that at critical points in U.S. history, a minority in the Senate could restrain the majority from making one step too many in a direction that could fatally damage the nation with that kind of excess.

The other observation I have, Senators, is that ultimately the national electorate always has the power to step in as a check on an exercise of power you may find in a change in the rules. That is, the pendulum that has swung in your direction could be swinging against you a lot sooner than you might imagine. That is, if you deploy the Nuclear Option to stuff the President’s nominees down the throat of the Democratic minority, the national electorate may not even wait to see how the nominee performs from the bench, but will become sufficiently concerned at your behavior to make changes in the Senate in 2006, and with the presidency in 2008.

One of the wisest of journalists in Washington, David Broder of The Washington Post, today recommends a compromise to prevent blows being struck in the Senate. His suggestion leads to the idea of taking the seven federal court nominees in the waiting line and negotiating a compromise, where Democrats agree to allow some to come to a straight up-and-down vote in exchange for permitting filibusters on those they consider “extreme.” I notice that Sen. Joseph Biden [ D DE] picked up on the suggestion this morning on one of the talk shows and indicated he personally would buy it. You should, I think, take him up on it and give Senator Specter a little leeway in working things out. It would be great to have the Senate working like it did back in those good old days.