Photo by the Associated Press
My blog has been on hiatus for a week or so as I adjust to the demands of my new post as opinion page editor at the Tribune, and I handled some of my volunteer work for local journalism groups. But I’m back, with a post I’ve been waiting to write for more than two years: Republicans should be immediately and eternally grateful that Sen. John McCain shut down the “nuclear” option when it comes to Senate approval for judges appointed to the federal bench.
Last week’s news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery for pancreatic cancer reinforced widespread belief that she will be the first liberal jurist to leave now that Barack Obama is president. Speculation on possible replacements already is rampant. Even a certain former Arizona governor is getting lots of attention.
While the next Supreme Court justice appointment probably will come from Ginsburg’s legal perspective, that person won’t be as wildly liberal as many in the Democratic Party would like. That’s because Obama will have to deal with a potential Senate filibuster from Republicans if he steps too far out of the mainstream. And Republicans are in a position to influence Obama’s judicial choices only because of John McCain and the so-called Gang of 14.
A quick recap: Almost from the beginning of former President George Bush’s first term in 2001, Senate Democrats who were in the minority used the threat of a filibuster to delay or block appointments of federal judges that were deemed to be too conservative. Time and again, Bush tried but failed to persuade enough Democrats to relent to get the 60 Senate votes needed to stop a filibuster.
So conservative activists came up with an alternative route for Bush to get the judges he wanted. They argued a filibuster of judicial appointments violates the Constitution because that document says nothing about needing more than a simple majority of senators to give their “advice and consent.” The idea was to have Vice President Dick Cheney (as Senate president) declare a filibuster as out of order so the Republican majority could ignore the Democrats and approve Bush’s appointments. The Senate loves its traditions and the filibuster is one of the oldest. Revoking it in this manner would have caused endless rancor and pushed partisan politics to a whole new level in Washington. Thus the reference to the “nuclear” option.
Republicans were ready to reach for the nuclear option in 2005, when Democrats were trying to block the appointment of John Roberts as chief justice. But many senators greatly feared chaos would result because most Senate work depends heavily on lawmakers getting along. Otherwise, the rules as written on paper could be used to prevent any business from getting done.
So a bipartisan collection of 14 senators met privately for days to find a way to avert the nuclear option. The result was enough Democrats withdrew their filibuster threats for Bush to get his nominees.
John McCain received much of the credit for the Gang of 14 agreement, so he should have been widely praised by fellow Republicans for protecting tradition but without bowing to the will of the minority. Instead, McCain was roundly criticized for his role, as GOP activists argued he had somehow betrayed the party by not steamrolling the Democrats.
However, McCain had enough experience and wisdom to envision a day down the road when Republicans would be in the minority and a Democratic president would be eager to put his stamp on the Supreme Court. That day is here, and if Republicans had invoked the nuclear option in 2005, the 57 Democrat votes in the Senate now would be free to completely ignore the GOP side of the aisle.
That’s not to say Republican will be able to prevent appointments of pro-choice jurists. But Obama will have to win at least few Republican votes. Or maybe just one, that of Arlen Specter, the ranking Republican (and former chairman) of the Senate Judiciary Committee. Specter’s support of an Obama appointment will swing enough Republican votes to avoid any filibuster.
But at least the Republicans won’t be completely ignored.
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