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Monday, May 23, 2005
 
WAITING FOR THE NUCLEAR OPTION FALLOUT

Unless some miraculous compromise gets worked out today, this week will go down in US history as the week of the "Nuclear Option" - and very likely the week when every serious, semi serious, right wing, left wing, political, apolitical and occasionally political commentary blogger will be writing about it. I like to be different whenever I can, but the lure of this piece of political drama is too strong to resist, so I’ll write about it too.

The way that language shapes our thinking - and how our thinking shapes our language, can at times be truly fascinating. Just think of what might happen ten, twenty years down the road when our children are being taught modern history. A few weeks ago, if a teacher told his class to prepare for a discussion of the "Nuclear Option," all of the research and all of the anticipation would have been about war,. Maybe about attacking Iran before they get a chance to develop nuclear weapons. Maybe about what we could do to close down the threat of nuclear attack by North Korea.

But now and in the future it’s just as likely - maybe more likely to be about debate in the United States Senate. About the week that our government of checks and balances got rid of both. No checks and no balances.

If you’d just arrived here from some other planet and if you listened to Senators from both sides of the aisle arguing about this topic, you’d have to conclude that they are all liars. That none of them tell the truth. From the Republican side, we keep hearing that using the filibuster to prevent federal judges from getting an "up or down" vote, has never been done before and filibustering against judges is "breaking senate rules."

From the Democrat side, we hear that Republicans have used and attempted to use the filibuster, precisely to prevent the confirmation of federal judges - and not just against Abe Fortas, despite Charles Krauthammer’s recent protestation to the contrary. Before my beloved Cody passed away on Monday of last week, I was prepared to take Krauthammer to task for one of the most ridiculous pieces he’s ever written - that the anti Fortas filibuster wasn’t really a filibuster for reasons a,b,c and d ad nauseum. But on reflection, Krauthammer’s rigid partisanship approach to any and all topics isn’t worth the time of day.

Of course we know that partisanship cuts both ways. We know that in the past, Democrats have also decried the attempted use of the filibuster to block "up and down" votes on judicial nominees, but unless a significant piece of history passed me by while I wasn’t looking, they’ve never tried to do away with the filibuster!!

It may well be that using the filibuster to prevent an "up and down" vote on an appointment to the Federal Appeals Court has not been used in the past, but my response to that is so what? It could be that there was never any need to use the filibuster for such a purpose in the past. The Republicans didn’t need to during the Clinton years because they had other methods. The appointment they’re now going gaga about was one that Clinton tried to fill twice!! If he’d been successful, there wouldn’t be this battle over Priscilla Owen’s qualifications for the 5th Circuit Court of Appeals. The position would have been filled long ago.

But maybe the reason the filibuster hasn’t needed to be used to block appointments to the Court of Appeals in the past is that we have never been this close to a total upheaval of the checks and balances that the framers of our constitution envisioned would apply brakes to the kind of political runaway train that is now hurtling its way down the track to who knows what kind of a future United States of America.

We have one party controlling the White House and both houses of Congress. If the President succeeds in getting all of his judicial nominees approved - and remember these appointments are for life - what happens to the concept of checks and balances? If the Republicans hold on to their power through the next national election or the next two national elections, which branch of government is going to provide checks to either one or both of the other branches if they are all of a single philosophical and political mind?

Mr. Bush doesn’t see this danger. His presidency thus far has been marked by smug expressions of righteousness and reckless actions. He thinks he is doing God’s work and that it is his destiny - not just to reshape the world in the image that he envisions - but re-shape his own country as well. The blind Republican partisans in the Senate don’t seem to sense any danger either as they fall in lock step behind the demagogic pronouncements of the politically ambitious Bill Frist. (Could you imagine entrusting your healthcare to this guy)?

It may be a different use of the filibuster to block appointments to the Federal judiciary, but we should be grateful that the filibuster exists and is being used in this fashion. It is being used to block only a handful of judges whose views are way outside of the mainstream and who shouldn’t have been nominated in the first place. But President Bush and the Republicans in the Senate want an unprecedented one hundred percent of all of his judicial nominees approved.

Judicial nominees who have unquestioned legal skills and temperament to preside over Federal courtrooms, traditionally garner strong bipartisan support in the Senate - which is as it should be. It should never be a situation where the vote is divided strictly along political party lines. Although politics obviously plays a strong role in seeking judges to fill Federal vacancies, nominees that evoke the kind of visceral partisan division that we are witnessing at the moment, shouldn’t be sent to the Senate in the first place. And a President who is guided by what is best for the country - instead of his own religious and philosophical beliefs, wouldn’t submit their names.

This President has not only submitted a handful of judges that cannot garner the kind of bipartisan support that would confirm their acceptability across party lines - which at the risk of repeating myself, is as it should be - but has stubbornly re-submitted them, touching off this week of the "Nuclear Option."

To which I say "Go, filibustering Democrats" Unless some Senators with more American than Republican blood in their veins join you, the "Nuclear Option" will prevail. But maybe it won’t be all bad. Maybe it will be a wake up call to American voters - including some not so died-in-the-wool Republicans, who may finally see that depriving the minority party in Congress of its traditional ability to call a halt to recklessly partisan legislation and Presidential appointments, changes the role of the majority from governing to ruling.

Let’s hope that the sound of our nation’s founders turning in their graves at such a proposition, will be loud enough to be heard in the Senate chambers. And let’s hope that what else they hear and pay attention to, will be historian Lord Acton’s ancient admonition - "Power tends to corrupt and absolute power corrupts absolutely."

But if that’s really what they want, all I can say is, Lord help us all.