Legal views of Frist's "nuclear option"
Gene TeSelle, Witherspoon's Issues
Analyst, sent this on Thursday, April 21, 2005
[Posted here 4-22-05]
Today I attended a forum at Vanderbilt's Law
School concerning the so-called "nuclear option" for the Senate, under which
a parliamentary maneuver would bypass the Senate's cloture rule and allow a
majority vote on the President's judicial nominees. The panel included two
law professors and an African-American minister. They gave lots of helpful
background, which also helped to clarify the foreground of the
issue.
They pointed out that Orrin Hatch as chair of
the Judiciary Committee during the Clinton years simply bottled up
nominations in committee, not letting them get to the floor B a seemingly
less "democratic" approach, since it foreclosed both debate and a registered
vote.
They commented that the current system, by
requiring sixty votes to close debate, encourages dialogue and negotiation
in the Senate. With the current party ratio, persuasion of five Democrats
can unlock debate -- and persuasion of five Republicans can make the vote go
the other way. Both have happened frequently.
They also reminded us that seven of the
current judicial appointments being opposed by the Democrats are
re-nominations; these are people who were rejected in the last Congress for
being too extreme or too ideological. Clearly the President's strategy is to
keep insisting on his way and precipitate a crisis.
Now to the really interesting part. The
"nuclear" scenario is one in which the President of the Senate,
Vice-President Cheney, would be asked to rule on a point of order. If he
were to rule that the cloture rule does not apply to judicial appointments,
his ruling would be challenged. And although it takes two thirds of the
Senate to change its rules, it takes only a majority vote to uphold a ruling
from the chair.
Asked whether such an action could be
challenged in the courts, the professors said that the Constitution allows
the Senate to make its own rules. This might make an appeal difficult. And
yet such an action would be a breach of the Senate's own rules. Thus there
might be an opening for court challenge.
Several dimensions of this strategy were
pointed out.
1. It is clearly a politicization of the
confirmation process, drawing lines and whipping up passions by talking
about "activist judges" who are making wrong, indeed immoral and unreligious
rulings. They would be replaced by other "activist judges" who, some hope,
will link church and state, inject religion into public schools and public
places, repeal reproductive rights, and ban legal rights for gays and
lesbians.
2. It is a disturbing kind of strategic
planning (some might call it conspiracy), under which the President of the
Senate, who is supposed to make parliamentary rulings impartially, would
participate in a scenario written in advance. This is what has several
Republicans in the Senate worried. It is also the reason many Republicans
tell pollsters that they are against it.
3. If it is still a possibility that the
Republicans will "go nuclear," Senator Bill Frist has already "gone
ballistic." He has promised to appear, on April 24, on a "Justice Sunday"
telecast sponsored by the Family Research Council. Tony Perkins, president
of the Family Research Council, thinks that the courts are trying to "rob us
of our Christian heritage and religious freedoms."
This, a panelist pointed out, amounts to
giving religious sanction to a political power play that breaks the agreed
rules of the Senate. It is a "teleological suspension of the ethical" in
which religious people, in effect, are telling the Senators to do evil so
that grace might abound. In holy war, after all, what is normally prohibited
becomes possible, even justifiable.
Theologians have loved to debate whether God
has the right C or the kind of character C to suspend God's own commands.
But most people would be reluctant to give that right to human beings, even
when they are religious leaders. Those who are not reluctant to do so are
likely to be theocrats, claiming that God rules through human
intermediaries who are to be obeyed because they have divine sanction.
The argument that is trotted out sooner or
later is that religion is an "absolute commitment" C as though this makes it
exempt from the rules of normal political behavior, and even confers the
privilege of defining those rules.
The difficulty, of course, is that many
competing groups can claim the right to carry their "absolute commitments"
into public discourse, and this promotes intolerance and eventually open
religious warfare.
Let's stifle the theocratic urge before it
gets to that point.