Invoking The “Nuclear Option” – There Is No Other Option

April 8, 2005

I think Republican Party honchos may be underestimating the grassroots passion over the judiciary. The outrage against activist courts — and by no means are all of them activist — is real, growing and far from a fringe phenomenon.

Conservative activists have been patiently waiting for some action, just some evidence that the Republican Party is going to pay more than hollow Beltway lip service to this issue. Year after year, though politicians are elected promising change, little evidence emerges that the promises are being fulfilled.

More and more conservatives are advocating civil disobedience to combat what they consider to be extra-constitutional decisions by state and federal courts, like the Massachusetts Supreme Judicial Court’s brazen validation of homosexual marriage.

It is inconceivable that the Massachusetts judges were unaware that they were acting beyond the scope of their constitutional authority by judicially rewriting the state constitution. But that doesn’t bother secular liberals, on or off the bench, because the “ends” to them are sufficiently important to justify practically any means.

The Democratic Party has long advocated the use of judicial activism to effectuate liberal policies that could not be achieved through democratic (legislative) processes. They make no apologies for their advocacy, nor do they bother to explain their hypocrisy in selectively decrying the few instances of judicial activism emanating from the other side.

Don’t just assume that fringe groups are losing their patience. How long can “rule of law” conservatives sit idly by as liberal Democrats continue to break the rules with impunity? How much more do they have to tolerate before something is done in response to such cavalier judicial behavior as we witnessed when the federal courts ignored Congress’ statute in the Terri Schiavo matter?

I realize that some have difficulty with Congress (and the Florida legislature before it) sticking its nose into that case through what could arguably be called special legislation. Legislatures are supposed to pass general laws, not special laws.

On the other hand, a woman was being killed by order of state and public officials, who were sworn to uphold state and federal constitutions, and have an obligation to protect the lives of innocent citizens.

The propriety (or lack thereof) of Judge George W. Greer’s decisions is one thing, assuming he was exercising lawful jurisdiction. We can disagree with his decision, even be outraged by it, but our main criticism here is probably not about his judicial activism.

But when the federal district court summarily disobeyed the congressional statute and ignored Congress’ subpoena, one has to wonder whether any semblance of parity actually exists anymore between the judiciary and the other two branches. The courts are so sure they’re the final authority, they sometimes behave as if there is utterly no accountability — and their assessment may be more accurate than not.

I am telling you that conservatives are sick and tired of hearing conservatives like me recommend caution and restraint, saying we have to work within the system to elect politicians who will appoint and confirm judges who will honor the Constitution and their proper role under it or have Congress rein in the courts via its Article III authority.

Indeed, I must confess that I will begin to feel foolish recommending such restraint if there is any truth to the reports that Senate Republicans plan on abandoning the misnamed “nuclear option” to prevent the Democrat minority from filibustering the president’s judicial appointments.

If Republicans even think about caving on this issue, they will pay a price. This is no time for fecklessness. Democrats couldn’t be more insincere when they complain that the nuclear option is designed to forestall debate or to give the president absolute power over judicial appointments.

Senate Democrats have no business blocking his appointments for political or policy reasons. A rule to prevent them from doing what neither party ever did in the past is not changing the rules, and it is not exercising a nuclear option.

I actually think this issue is so serious that it might, along with the immigration issue, eventually trigger an exodus of conservatives from the GOP. If those of us who advocate playing by the rules can’t even count on GOP politicians to safeguard the president’s judicial appointment power — then what can we trust them to do?

If they don’t have the courage to exercise the non-nuclear, nuclear option, do you think we’ll ever again get anyone to the right of David Souter appointed to the Supreme Court? And if we don’t, they might as well just throw in the towel on the Culture War.

This is a political hill to die on, and I pray GOP honchos wake up — soon.