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Jewish World Review Dec. 28, 2004 / 16 Teves, 5765

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Nuclear option is not nuclear | I disagree that the Republican majority in the Senate would be exercising a "nuclear option" by changing the rules on vote cloture to prevent Democrats from filibustering President Bush's judicial nominees.

The Constitution empowers the president to appoint judges with the advice and consent of the Senate. The advice and consent power was never intended to confer co-equal power on the Senate over judicial (and other) nominations. Rather, it was designed to provide a legislative check to reduce the risk that the president would appoint unqualified judges or those with poor character.

The Constitution also empowers the Senate to make its own rules. Rule XXII provides that upon the filing of a petition for cloture (to end further debate), "three-fifths of the senators duly chosen and sworn" must vote to close the debate.

When 41 or more senators work in concert to forestall cloture, it is known as filibustering. The mere act of filibustering, by definition, is designed to thwart the will of the Senate majority. But, on the other hand, the majority of the Senate retains the power to change its own rules. So, at any time the Senate could, prospectively, change its rules on vote cloture altogether, or only as to certain types of votes.

Presently, the Republican Senate majority is contemplating a measure to change the rules on vote cloture only respecting the president's judicial nominations. This measure, Senate Resolution 138, should not be considered a power grab by the majority, but a necessary corrective measure to remedy the Democrat minority's unprecedented abuse of power over the president's judicial appointments.

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The resolution is hardly radical in its scope or application. It would provide for a declining series of votes to end debate on judicial appointments. The first motion for cloture would still require a three-fifths vote, and the second and third attempts would require 57 and 54 votes, respectively, with all attempts thereafter requiring a simple majority.

Obviously, the resolution is not designed to cavalierly end thorough debate on the fitness of any judicial nominee, but would guarantee that the will of the Senate majority would eventually prevail.

Some have argued that this would be an extreme "nuclear option" that Republicans will exercise at their peril. The practice of filibustering, after all, has been around for years, and the Republicans shouldn't be so cocky as to replace it because they control the legislative and executive branches.

Not so fast. While filibustering has been around for years, it has rarely been used by a Senate minority to thwart the president's judicial appointment power. But President Bush has had at least seven of his judicial appointments blocked without a full vote of the Senate.

Up until this president's tenure, there was an understanding that Senate minorities wouldn't filibuster his judicial nominees, because to do so, in effect, upsets the Constitution's prescribed separation of powers — one of the most important bulwarks in the Constitution designed to limit government by preventing any one branch from gaining too much power.

As constitutional scholars have pointed out, including many in the Federalist Society, and Landmark Legal Foundation's Mark Levin, it is one thing for the Senate minority to thwart the will of the Senate majority on issues that are constitutionally assigned to Congress — such as taxing and spending bills. It is another for it to do so over those powers, like the judicial appointment power, largely within the prerogative of the president.

The Senate, it seems, could constitutionally change its vote cloture rule to prevent filibuster across the board, but this would be a more dramatic departure from historical practice. But for it to change the rule only as to judicial appointments would hardly be an in-your-face "nuclear option."

The nuclear option was exercised when the radical minority filibustered the president's judicial nominees, thereby usurping his appointment power. For the Senate to pass Resolution 138 would be more akin to employing SDI — a nuclear missile defense system.

Crack political analyst Dick Morris argues that Republicans would be cutting their own throat to pass this resolution because the election didn't give them or President Bush a mandate on social issues, but only on the War on Terror. The passage of this resolution, he contends, would backfire and undermine their chance of cementing a solid Republican majority for the future.

I disagree. Republicans merely want the president to be able to appoint constitutionalist judges. Since when did the appointment of judges who would read the Constitution according to its original intent become an extreme act?

What is and has been extreme is for presidents to appoint judges who will make up the law as they go, rewriting the Constitution at will. To reverse that practice is not extreme, but restorative

Besides, Mr. Morris underestimates the power of the president's conservative base, who would feel betrayed and disenfranchised if he appointed "moderate" read pro-choice judges. And while the election did probably turn more on the War issue than social issues, the voters knew that President Bush intended to continue to appoint originalists to the federal bench. I doubt that they would consider it a power grab for the Senate to change its own rules to prevent further usurpations of the duly elected president's powers.

Republicans need to quit squandering their own prosperity and adopting the timid approach every time they get in power. The voters elected them, and they have the right — indeed the duty — to attempt to implement their agenda fairly and squarely under the rules. To do so would be neither an act of extremism nor an abuse of power, but the fulfillment of what they promised the voters when running for office.

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David Limbaugh, a columnist and attorney practicing in Cape Girardeau, Mo., is the author of, most recently, "Persecution: How Liberals Are Waging War Against Christianity". (Click HERE to purchase. Sales help fund JWR.) Comment by clicking here.