Hypocrisy in the 'Nuclear' War

By JOHN W. HASTRUP

I agree that Republicans should not pursue the “nuclear option” to change Senate rules so that judicial nominees cannot be filibustered. Once the filibuster is eliminated for confirmation, the party in power will likely extend this practice to every “important” piece of legislation that cannot garner the sixty votes to overcome the motion, and a key check on majoritarian power will disappear.

Yet it was not the Republicans alone who brought us to this juncture. The hypocritical and unprecedented obstruction of Senate Democrats did just as much to elevate partisan rancor. If the Dems were to allow all judicial nominees an up-or-down vote, the current kerfuffle would quickly end.

Democrats articulated well the up-or-down vote principle in the late 1990s when President Clinton’s nominees faced Republican obstruction, but with the tables turned seem to have forgotten it. One of the chief obstructionists, Patrick Leahy D-VT, said in 1998: “I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported.” Tom Harkin put it even more bluntly: “[The filibuster process] is used…as blackmail for one Senator to get his or her way on something that they could not rightfully win through the normal processes.” But with the tables turned and a Republican President selecting judges, Dems have blocked about 10 out of 50 of Bush’s appellate court nominees and seem prepared for a dogfight with expected vacancies on the Supreme Court forthcoming.

Worse still, the tactics of Leahy, Harkin and others go far beyond what the GOP did under Clinton’s tenure. Republicans certainly did stall floor votes on nominees in ways that can only be described as undemocratic, but they never ventured beyond well-established delay procedures that majority parties have used for decades. By using the filibuster throughout Bush’s term, though, Democrats broke 214 years of tradition stipulating that only a majority vote was needed for confirmation. In fact, many current and former federal judges were approved with fewer than 60 votes.

Filibuster supporters may claim that they are acting only to prevent ideologically extreme candidates from attaining lifetime appointments, but the action serves only to further politicize the judicial branch and increase partisan bitterness. The nuclear option reared its ugly head when special interest groups began distributing lists targeting nominees as good candidates for blocking—lists which were heavy on sensational allegations and light on reasoned critiques. Bill Pryor was accused of racism despite his record of fighting for civil rights, while others were blocked because they did not pass the litmus test on abortion. If the GOP fails in its attempt to “go nuclear,” one can only imagine the obstruction techniques it will use when it is once again in the minority.

Furthermore, Democratic tactics smack more of short-term political gain than of genuine concern for a reactionary judiciary. Candidates blocked on racial grounds can be exploited to garner support from minorities, while obstruction of those failing the abortion test riles up pro-choice groups. Both parties know that in reality it is very difficult to predict a potential nominee’s behavior once he or she is actually on the bench. Republican nominees from Earl Warren to John Paul Stevens to David Souter have gone on to be among the Court’s most liberal justices; Antonin Scalia, widely considered today’s most conservative justice, was confirmed 98-0 by the Senate in 1986.

The current “nuclear” war will continue to damage the political and judicial systems as long as it continues, regardless of its outcome. Democrats should brush aside perceived short-term gains from filibustering and reassert their commitment to an up-or-down vote on nominees. A recent poll showed that while only 37 percent of Americans support going nuclear, 80 percent support floor votes on all nominees. Dems should end an unjust war and take the moral high ground.

John W. Hastrup ’06, a Crimson editorial editor, is a government concentrator in Dunster House.