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The Planet
Senate Girds for ‘Nuclear’ Attack

Face-off imminent over judicial nominations, limits on debate

by Timothy Lesle

Only ten of President Bush’s more than 200 judicial nominees were rejected by the Senate during his first term. Now, Bush has submitted most of those candidates yet again. It looks like a repeat of the same series of events: a set of extreme candidates are nominated and senators who want to keep them off the bench must resort to the last card up their sleeves—the filibuster.

Maybe not for long, though. The Senate may go “nuclear.” That is, the Senate majority leadership may exercise what Senator Trent Lott has dubbed the “nuclear option.”

“This is the most important thing I’ve ever worked on.” Senator Harry Reid speaks to a rally on April 6 where a coalition that includes the Sierra Club presented him with more than a million petition signatures opposing the nuclear option.

Photo by Alice McKeown

Under the present rules of the Senate, a filibuster can only be stopped after rounding up 60 votes to end debate. This makes the filibuster the last hope for the minority to influence Senate activity. By engaging in parliamentary maneuvering, the majority leadership may have the use of filibusters against judicial nominees declared unconstitutional by the Senate’s presiding officer (most likely Vice President Dick Cheney). Any appeal of this ruling could be defeated with a simple majority of 51 votes. From that point forward, judicial nominees could be confirmed with a simple majority—and without risk of filibuster. This would give the Bush administration a free hand to put whomever it wants on the federal bench.

The Sierra Club has good reason to be concerned.
Consider Exhibit A: William Myers, recently re-nominated to the Ninth Circuit Court of Appeals after being rejected by the Senate in 2004. Myers has a long record of working against the environment, notably as an attorney and lobbyist for the mining, timber, and grazing industries. Myers has argued that Endangered Species Act regulations are unconstitutional and that wetlands are not protected under the Clean Water Act. David Bookbinder, a senior Sierra Club attorney in the Environmental Law Program’s Washington, D.C., office, put a Myers appointment in perspective: “The federal courts are becoming more important to our work. Because federal judgeships are lifetime appointments, someone like Myers could affect environmental policy for decades.”

Will Republicans really make good on their threat to activate the nuclear option? “Probably,” says Bookbinder, “but several Republicans are uncertain, including [Senate Majority Leader] Bill Frist.” While some of those Republicans are hesitant about re-writing Senate rules, Bookbinder points out that Frist’s concerns are more political: “As a potential presidential candidate in 2008, Frist doesn’t want to lose this vote. A win would both prove his power in the Senate and please the conservative base.” As a result, he keeps pushing back enactment of the nuclear option while he tries to round up enough votes to ensure adoption of the rule change.

Democrats, meanwhile, are preparing for a showdown. As Senate Minority Leader Harry Reid told Sierra Club Executive Director Carl Pope at a meeting of key national organization leaders, “This is the most important thing I’ve ever worked on.” Reid announced the following day: “Today I have delivered a letter to the Republican leadership making clear that the Democrats in the Senate will not lie down quietly and allow the checks and balances created by our Constitution and our traditions to be taken away.”

Specifically, if the nuclear option is put into effect, the Democrats have said that they will use parliamentary tactics to effectively shut down the Senate.

It sounds extreme, but Bookbinder believes Democrats will follow through because they think there is no other choice. It should be emphasized that the Democrats will not work to shut down the entire federal government, which the Republican Congressional majority did in 1995—a highly unpopular move. As Bookbinder explains, “Democrats will get spending done so that the government will continue to work. They would only shut down the Senate, stopping work on the president’s agenda.” At an April 6 rally, a coalition that includes the Sierra Club presented Senator Reid with more than a million petition signatures to stop the nuclear option.

The damage done by the nuclear option may not end at judicial nominations. As Senator Robert Byrd warned in the Washington Post, “If senators are denied their right to free speech on judicial nominations, an attack on extended debate on all other matters cannot be far behind. This would mean no leverage for the minority to effect compromise, and no bargaining power for individual senators.

As Bookbinder says, “The nuclear option doesn’t merely cut off debate, it suffocates it.”

Tell Senator Frist to preserve democracy in the Senate and urge your senators to oppose the nuclear option. Write them at U.S. Senate, Washington, D.C., 20510 or call the Capitol Switchboard at (202) 224-3121. To learn more, go to

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