Political Hay

Senate Nearing Nuclear

After last week's marathon Senate Republicans will score points against unconstitutional Democrats.

By 11.17.03

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At the conclusion of the marathon debate of nearly 40 hours which Republicans engineered over the question of some of President Bush's nominees to the Circuit Courts of Appeal, Pennsylvania's Senator Rick Santorum said he believes that it is now clear that from here on out it will take 60 votes to confirm a federal judge. Thus, he promised that at such time as he or a future Senator might serve under a Democrat President, activist judges nominated by that President will be stopped by at least 41 GOP Senators.

That is what Santorum believes came of the around the clock session which last two nights and a day and parts of two other days. The Senator followed his conclusion by pleading with his Democrat colleagues to put the genie back in the bottle. He said if the Democrats would just allow up or down votes on nominees, then the historic posture of the Senate in not engaging in filibusters against judicial nominees would continue. Otherwise, Santorum said, we will have filibusters as far out as the imagination can comprehend.

As someone who urged this approach time and again on the Majority leadership, I believe something else was accomplished. I believe the nation knows that these judicial nominees are an issue. True, the way the talk-a-thon was conducted, liberal Democrats got almost half the time. It gave them the opportunity to confuse things and to misrepresent what Republicans had done on judges during the Clinton administration.

As someone who ran the organization who led the way in urging Republicans to stop some of Clinton's worst nominees, I can affirm that they did not filibuster any nominees. Why then the cloture votes? Those were just held (and there was only one vote per nominee) to clear away the "holds" which Senators had placed on certain nominees. Cloture was obtained in every case, so all of Clinton's nominees that made it out of committee received an up or down vote. One of his nominees was actually defeated by the Senate.

As to nominees left in committee, it needs to be said that Bill Clinton, at the end of his eight years in office, had named close to half the federal judiciary. He got a higher percentage of his judicial nominees confirmed than did either Presidents Reagan or Bush '41. In fact, Reagan and Bush together had 12 years in office and combined they had only a small percentage more of their judges confirmed than Clinton did in eight years.

Democrats had a huge sign up with 163 to 4 on it, giving out the misleading view that 98% of Bush's nominees have been approved. This debate was not about trial judges, or federal district court nominees. It was about nominees to the Courts of Appeal. As soon as the talk-a-thon was finished, there were three more cloture votes, so Democrats were then formally filibustering six. But wait, there's more. Democrats have served notice that they intend to filibuster six more, so the number being opposed is really 12 so far. Moreover, that's 12 out of a total of 41 nominees. Those are pretty significant numbers. Republicans should have had a counter sign to call attention to the real issue.

Anyway, I heard and saw a good deal of the news coverage on the event. It was a success. Before this, Republicans complained and complained about the tactics of the liberals and they got no coverage. This time radio and television networks did cover the issue, even though they also gave ample coverage to the liberals whining about how this time should have been spent on health care, jobs bills and the minimum wage.

Meanwhile talk radio and the Internet went wild. This was a hot topic all
over the nation.

It also accomplished something else. Senators such as Rick Santorum, Lindsey Graham (R-S.C.), Jon Kyl (R-Az.), John Cornyn (R-Tx.) and even Majority Leader Bill Frist got great national exposure. They are an impressive lot and Santorum, in particular, emerged as an important national figure. He is Chairman of the Senate Republican Conference, so he is already part of the leadership, but clearly the national media is going to pay much more attention to him.

I believe Republicans, who have been totally united on the judges issue, have now set up a framework for the liberal filibuster to be seen as an important matter. At minimum, it has set up this issue for 2004. At maximum, it may have even created demand for the "nuclear option" where Senators will simply insist that what the liberals are doing is unconstitutional and will proceed to confirm these nominees.

Paul M. Weyrich is Chairman and CEO of the Free Congress Foundation.

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Paul M. Weyrich is chairman and CEO of the Free Congress Foundation.