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In the wake of Terri Schiavo’s death, conservative Christian activists are pushing Republican lawmakers to detonate the so-called nuclear option — a change of Senate rules that would block Democrats from filibustering judicial nominations.
As the Senate returned to session this week, several Christian conservative groups were running ads urging the Republicans to eliminate the judicial filibuster, a parliamentary tactic to prevent nominations from coming to a vote. Democrats have used the maneuver to prevent votes on 10 of President Bush’s most conservative judicial picks.
“The liberal Senate minority’s cat-and-mouse game with judicial nominees must stop,” said Tony Perkins, president of Family Research Council, one of the groups, in a statement.
It now takes a supermajority of 60 votes to shut down a filibuster in the Senate, but the proposed rule change — which Republicans have taken to calling the “constitutional option” — would lower that number to 51. Exercising the option would invite retaliation from Democrats, who would use other parliamentary means to stifle President Bush’s legislative agenda.
With the showdown on judges coming as early as the end of this week, all eyes are on the Judiciary Committee and its chairman, Senator Arlen Specter. A Pennsylvania moderate who is the nation’s senior Jewish Republican lawmaker, Specter was the target of a furious assault from the Christian right last fall when he noted that it would be difficult to confirm a Supreme Court nominee who did not pledge to uphold Roe v. Wade. Now Specter is angering Christian conservatives with his efforts to broker a compromise to avert the nuclear option.
The stakes in the filibuster battle couldn’t be higher: All sides agree that the fight is a proxy war for the looming battle over vacancies on the Supreme Court, made urgent because of the illness of Chief Justice William Rehnquist.
The Republicans who have been brandishing the threat of the nuclear option, including Senate Majority Leader Bill Frist, want to change the balance in the Supreme Court in favor of a less-stringent separation of church and state.
“They think there’s too strict a wall of separation, and those Republicans are eager to bring that wall down,” said Michael Gerhardt, a law professor at the College of William & Mary who opposes the nuclear option. “They want to get rid of the filibuster and create a clear pathway for the president’s nominees to the Supreme Court.”
However, proponents of the nuclear option insist that it is the Democrats who have been thwarting the Constitution by holding up Bush’s nominees.
“The judicial nominees that are being held up by the filibuster have not been accused of any ethical problems, haven’t cheated on their taxes. Nobody’s accused them of anything inappropriate,” conservative Christian activist Gary Bauer told The Washington Times. “The only thing they’ve been accused of is sharing a philosophy of the president who nominated them.”
In the middle of the fight is Specter, who assumed the Judiciary Committee chairmanship in January over the strenuous objections of Christian conservative leaders, including James Dobson, chairman of the evangelical powerhouse Focus on the Family. Last week, Specter told NBC News that he tried to defuse the nuclear option crisis by suggesting to Bush that he consult senators, especially Democrats, before making judicial nominations, which had been the practice in earlier administrations. But, he added, Bush had been “noncommittal.”
Specter’s moves have angered his evangelical antagonists. “Arlen Specter… is again threatening to subvert the nomination process…. He must not be permitted to do that,” Dobson wrote in his newsletter this month. He blasted Specter for saying recently that “the far right is going to come hard at a nominee if it is not a nominee of their choosing. But I think there’s a much broader base in America than the far right.”
Specter, for his part, claimed he was doing his job.
“Senator Specter believes the Senate and the public interest would be best served by toning down the rhetoric and moving ahead with the confirmation process of judicial nominations,” said a Specter spokesman who declined to be named. “The Judiciary Committee has already held hearings on four nominees and has reported out of Committee the nomination of William Myers to the Ninth Circuit. The senator’s focus is to proceed and get these judges confirmed without coming to the constitutional or nuclear option. Senator Specter is doing everything he can to ensure these nominees get the up-or-down vote they deserve.”
Some liberals are predicting that if his efforts at compromise fail, Specter will side with his fellow Republicans on the filibuster issue.
“I think there’s a strong possibility he’ll support [the nuclear option],” said Sammie Moshenberg, the National Council of Jewish Women’s director of Washington operations. “He hasn’t shown a lot of courage, and he made a lot of promises to secure that committee chairmanship.”
The women’s council, one of three Jewish groups strenuously opposing the nuclear option, delivered a petition with more than 1,000 names on the subject to the Senate leadership at a rally in Washington on Wednesday.
Some Democratic strategists feel that Republicans have overplayed their hand in their attacks on the judiciary. Last week, House Majority Leader Tom DeLay, a Texas Republican, threatened political retribution against “an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president” in the Schiavo matter. This week, Senator John Cornyn, also a Texas Republican, took to the Senate floor to denounce the “political decisions” of “unaccountable” judges, which, he said, “builds up to the point where some people… engage in violence.”
Given what they describe as the perception of Republican overreach, some Democrats are almost itching for the GOP to pull the nuclear-option trigger.
“You’d have to think that the saner members of the Republican Caucus are looking at the Schiavo debacle, watching polls, watching DeLay and Randall Terry and company and are starting to feel sick,” said Jim Jordan, a Democratic strategist who has advised Democratic Party Chairman Howard Dean. “The lunatics are running the asylum, Tom DeLay is now securely the face of the party and the public is watching. Coming back to town to engineer an unprecedented power grab would be politically nuts. Democrats can only hope.”
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