by Lowman S. Henry | April 23, 2005

It has become known as the “nuclear option,” but it is more accurately the return of constitutional intent to the operations of the United States Senate.

Regardless of how your phrase it, the time has come to put an end to the use of the filibuster to block the confirmation of President George W. Bush’s appointees to the federal judiciary. The Constitution of the United States says the Senate shall give “advice and consent” – and historically “consent” has been given by a simple majority vote, in this case the support of 51 members of the Senate.

Senate Democrats have abused their power by filibustering, or attempting to filibuster, Bush nominees with whom they disagree. In order to invoke cloture, or end a filibuster, it takes a super-majority of 60 votes. Republican are in a majority in the senate, but not that much of a majority. Therefore, a minority of senators have been able to block confirmation through the use of a procedural maneuver.

U.S. Senator Rick Santorum put in best in a recent Washington Post op-ed when he said “Senate Democrats have opted to disrespect the people’s voice and continue their audacious and constitutionally groundless claims for minority rule.” As Santorum correctly pointed out in his editorial, voters only means of influencing the federal judiciary is through their votes for President (who appoints) and senators (who consent). The confirmation of federal judges was a major campaign issue last year and in both cases, through the re-election of President Bush and the expansion of the Republican majority in the U.S. Senate – voters were clear in expressing their opinion as to the future direction of judicial appointments.

The acrimony over judicial appointments has reached a fever pitch precisely because Democrats have lost control of Congress, and likely the Presidency, for the foreseeable future. The judiciary is the last bastion of liberal power at the federal level, and Democrats are prepared to fight to the death to prevent the loss of the third branch of government as well.

In a recent speech, U.S. Supreme Court Justice Antonin Scalia reflected on the acrimony over the judiciary saying: “the people have come to realize what is going on: that the people they are selecting, not just for the Supreme Court, but even for the courts of appeals, have enormous policy discretion.”

Scalia, who is a strict constructionalist, or someone who interprets the constitution based upon the original intent of the framers, laments the trend toward an activist judiciary that makes the laws rather than interpreting them. A move back to original intent is precisely what President Bush is attempting to accomplish with his appointees – and it is what the Democrats are trying to thwart.

That brings us to the use of the filibuster as an obstructionist tactic. Senate Democrats know that if the President’s nominees are brought to the floor they will receive the simple majority vote needed to confirm. But, is such a vote even necessary? Speaking recently before the Pennsylvania Leadership Conference, former Congressman Pat Toomey, now President of the Club for Growth, suggests the constitution only calls for majority consent. It does not specify a floor vote, so Toomey argued that a majority of Senators signing a letter to the President giving their consent would fulfill the constitution’s requirement.

Toomey may be onto something. Be it by letter, or by pulling the trigger on the “nuclear option” – changing the Senate’s rules to prevent a filibuster of judicial nominees – the time has come for Senate Republicans to get some backbone and act. Comity in the upper chamber is important, but when a minority uses it to violate the constitution, then tough action must be taken. Majority Leader Bill Frist and company need to stop fooling around, exercise the “nuclear option,” and bring the President’s judicial nominees to the floor for a vote.

Sure, there will be howls of protest from Democrats and their allies in the liberal media. That’s just too bad. They blathered away through all of 2004, and the people spoke. Senate Republicans need to step up to the plate and do what we the people sent them to Washington to do.