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E-M:/ EarthJustice on the "Nuclear Option" on judicial nominations



April 22, 2005

To:     Editorial writers/Columnists
From:   Earthjustice, Glenn Sugameli, Senior Legislative Counsel
Phone 202-667-4500 x 221
Cat Lazaroff, Press Secretary, 202-667-4500 x 213/cell: 202-365-1329

200 Years of Precedent Could Fall Prey to Political Expedience
Senate prepares to violate own rules to eliminate vital safeguard of independent courts

Our nation?s fundamental safeguards depend on federal courts that function independently and outside of partisan politics. Yet Senate Majority Leader Bill Frist (R-TN) is currently pushing to convince Senators to vote in favor of overturning long-standing rules that allow the Senate to block unqualified and politically-motivated nominations to lifetime seats on the federal bench. Frist?s proposal would eliminate the ability of 41 or more Senators to filibuster any current or future nominee for a lifetime federal judgeship.

Senator Trent Lott (R-MS),who authored the plan, called it the ?nuclear option? because it would violate long-standing Senate rules and destroy the bipartisanship that the Senate needs to function. Senate Judiciary Committee Chairman Arlen Specter (R-PA) has called it ?Armageddon.?

Senate rules permit filibusters of judicial nominees and require a two-thirds majority of the Senate to approve rule changes. The nuclear option would use a simple majority of Senators to change the Senate rule that governs cloture on filibusters, which has never before been changed in such a manner.

The nuclear option would require overruling the Senate's parliamentarian, who has concluded that Sen. Frist's plan is wrong and would violate the Senate?s rules. As The Hill newspaper noted in reporting this: ?When he was majority leader, Lott appointed the parliamentarian, Alan Frumin, after firing his predecessor, Bob Dove.? A recent report by the non-partisan Congressional Research Service confirmed that ?would require the chair to overturn previous precedent.?

Opposition to the ?nuclear option? is broad-based, including those who oppose and those who support the current judicial nominee filibusters, both conservatives and liberals, Democrats and Republicans. Columnist George Will, former Senators Jim McClure (R-ID) and Malcom Wallop (R-WY), Gun Owners of America, and the anti-union National Right to Work Committee oppose the nuclear option, as do a wide range of environmental, civil rights, labor, and other groups.

Previous Senate filibusters successfully blocked Abe Fortas? nomination to Chief Justice of the United States in 1968; Sam Brown?s nomination to Ambassador in 1994; and the nomination of Henry Foster to be Surgeon General in 1995. Many of the Senators who are now claiming that filibusters of judicial nominees are unconstitutional voted to filibuster the latter two nominations.

In fact, the Senate rules permitting the current filibusters and those against Fortas, Brown, and Foster, are founded on the identical provisions of the Constitution.  The Rules Clause provides that ?[e]ach House [of Congress] may determine the Rules of its Proceedings,? and the Appointments Clause authorizes judicial and executive branch nominations, stating that the President ?shall have the Power, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States.?

There are no compelling reasons for changing the filibuster rule. Sen. Patrick Leahy (D-VT), ranking Democrat on the Senate Judiciary Committee, has announced that Democrats will not filibuster the president?s controversial nomination of Thomas Griffith to the D.C. Circuit U.S. Court of Appeals. President Bush has been extraordinarily successful in his efforts to place lifetime judges on our courts. The number of confirmed lifetime federal judgeships is higher than it has been in more than a decade, and with 205 confirmed lifetime judges and a 95% confirmation rate.

The Constitution?s requirement that the Senate must confirm the president?s nominations is a vital check and balance on the president and on the lifetime members of the third branch of government, our independent judiciary. Eliminating the ability to filibuster would apply to all future nominees, including those whose records show that they are unqualified, extremely biased or unethical.

To defeat a filibuster, 60 Senators must be willing to vote to end debate on a bill or a nominee. This provides a valuable safeguard that prevents a narrow majority from forcing its priorities on all Americans.

Please Editorialize

The American judiciary was established to rise above partisan politics and operate independently, to fairly interpret and enforce the statutes and and Constitution of the United States. Environmental safeguards depend on independent, fair-minded judges who impartially interpret the law, and are not rubber stamps for any political agenda.

We hope you will join the Chicago Tribune, Denver Post, Houston Chronicle, Wichita Eagle, Washington Post, Cincinnati Enquirer, New York Times, Indianapolis Star and over 170 other newspapers in opposing the nuclear option that would violate the Senate rules in order to eliminate the Senate?s right to filibuster unacceptable judicial nominees.

For more information on judicial nominees and the right to filibuster, visit:
http://www.earthjustice.org/policy/judicial/whats_new/


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