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Molly Ivins

The nuclear option and judicial activists
April 26, 2005

AUSTIN, Texas -- I was all set to write a column about the nuclear option -- the proposal to change the rules of the Senate in order to get President Bush's most questionable judicial appointments through -- when, lo, word came that there is no nuclear option anymore. It is now called "the constitutional option."

Who changed it? Why, the Republican Party, of course. Having found that "nuclear option" does not poll well, the Republicans simply decreed the rules change can no longer be described by that name. Further, the Republican Party sent media operatives around to major news organizations to inform them that anyone who fails to obey the new diktat on usage will be demonstrating the dread "liberal bias."

Since this particularly fateful rules change was first christened "the nuclear option" by Sen. Trent Lott of Mississippi in 2003, and has been called "the nuclear option" ever since -- by Republicans, along with everybody else -- I have to say this is a distinctly Orwellian development.

In fact, given the implicit threat that the Republican Party faithful will be encouraged to denounce all news outlets that do not conform to this new political correctness, I'd say it is not only ridiculous but also dangerous, quite a feat.

I shall, of course, continue to refer to the proposed change as the nuclear option out of a sense of obligation to freedom of speech. I would be shocked if anyone in the media did otherwise.

Now, back to substance. Americans are notoriously bored by governmental process. If you want to lose readers, just start a story with, "House Bill 787 was passed out of subcommittee by a unanimous vote on Tuesday." So, convincing folks that changing Senate Rule 22 is a danger to the republic is a challenge. But this really is about protecting the rights of the minority in the Senate, the right of every senator to filibuster.

In the old movie "Mr. Smith Goes to Washington," the key scene is Jimmy Stewart's filibuster on behalf of the people, which triumphantly wins over his fellow senators. Under the changed rule, Mr. Smith would have to keep his mouth shut.

Actually, no one filibusters anymore. The last filibuster against a judicial nominee was in 1968, when the Republicans successfully filibustered for four days to stop Abe Fortas from becoming chief justice of the Supreme Court. If there's a serious threat of filibuster, the leaders broker a deal.

But the Democrats are threatening to filibuster the same Bush judicial nominees they busted in his first term, leaving the poor man with only a 95 percent approval rate for his nominees. Bush promptly renominated seven of these 10 dog judges (including Texas' own Priscilla Owen), and now the Republicans are prepared to change the rules so they can be cleared by a simple majority, rather than winning the 60 votes needed to stop a filibuster.

Since what goes around comes around, some Republican senators are deeply troubled about the prospect of being in the minority themselves someday without the right to filibuster. Further, in order to change Rule 22, the Senate also has to change the rules on how to change the rules. At present, a two-thirds vote, 67, is required to change the rules, but under a procedural ploy, this will be brought up "out of order," so it requires only 51 votes.

Look, this is a system of government based on protecting the rights of the minority. It is also based on the premise that there are three separate branches of government, each of which forms a check and a balance on the others. It was carefully designed to prevent the dictatorship of the majority.

That is why the Founders assigned the Senate, not the House, to advise and consent on federal nominations. Sen. Robert Byrd, the resident scholar of all things senatorial, notes that while Rule 22 is only 86 years old, the tactic itself has been used since the first Congress. (Hearing Byrd hold forth on such matters is pure pleasure -- whether you agree with him or not, he is a magnificent speaker of the old school and a sad reminder how debased most political speech is today.)

How God got involved in all this is a bit of a mystery. Some Christian Dominionists decided the Almighty is in favor of changing Rule 22. Led by James Dobson, who runs Focus on the Family, they decided 22 is "a filibuster against the faithful," implying and in some cases stating that anyone who opposes them is anti-Christian and probably working for Satan.

Last time I checked, no one had elected Dobson to decide who is a Christian and who is not. It's a joke that the right wing claims it is against "judicial activists." What they want are judicial activists who agree with them. These people don't want to govern, they want to rule.

(For an excellent sense of how the Christian Dominionists think, I highly recommend the two lead articles in the May issue of Harper's magazine.)

To find out more about Molly Ivins and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate web page at www.creators.com. COPYRIGHT 2005 CREATORS SYNDICATE, INC.

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