March 20, 2005
By Jon Sawyer
Knight Ridder News Service
WASHINGTON - In an unusual public address last week that many viewed as an audition for his possible nomination to head the Supreme Court, Justice Antonin Scalia remarked on the radically altered judicial climate since his confirmation to the court by the Senate in 1986.
Then, Scalia was already a well-known conservative jurist, known for acerbic, assertive opinions from his perch on the U.S. Court of Appeals for the District of Columbia. The Senate was closely divided along party lines. But after President Ronald Reagan nominated Scalia, he was confirmed 98-0.
Today, the nomination of someone like Scalia might not even reach the Senate floor for a vote. The early skirmishing has already begun over lower-court nominees, with Republicans threatening to do away with filibuster rules that permit as few as 41 senators to block votes on judicial nominations and Democrats countering that they will respond to this so-called "nuclear option" by bringing Senate action on everything else to a halt.
Senate Minority Whip Dick Durbin, D-Ill., says the battle over filibusters is focused on seven previously rejected district and appellate court nominations President Bush has resubmitted, and most immediately that of former Interior Department counsel William Myers, who was approved Thursday by a 10-8 party-line vote of the Judiciary Committee for the 9th U.S. Circuit Court of Appeals.
"These circuit court judges are extremely important," Durbin said. "They decide so many cases across the country. We know that these are policy-making positions and so I don't diminish them. But make no mistake: Overshadowing them, and this whole debate, is the anticipated vacancy on the Supreme Court."
Chief Justice William Rehnquist is ailing with thyroid cancer and many court-watchers anticipate his retirement by July, the end of the court's current term. Bush has called associate Justices Scalia and Clarence Thomas his favorite jurists on the high court. Elevating Scalia to chief justice would set off the biggest Senate court battle since Thomas' confirmation in 1991.
Senate Majority Leader Bill Frist, R-Tenn., says he plans to bring the Myers nomination up for a vote in the full Senate in early April, and that if Democrats block a vote he will institute rules changes that would force an up-or-down vote on confirmation if a simple majority of the 100-seat Senate agrees. In the current Senate there are 55 Republicans, 44 Democrats and one Independent who participates in the Democratic caucus.
Republicans note that nothing in the Constitution requires more than a simple majority for judicial confirmations. Democrats say the GOP is abusing its current majority, running roughshod over Senate traditions that have been in place for more than a century. They also point out that during the administration of President Clinton, Republicans blocked or delayed several judicial nominations.
"[T]his attempt to strip away these important checks and balances is not about judges," Senate Minority Leader Harry Reid, D-Nev., told a rally Tuesday on the Capitol steps. "It is about the desire for absolute power."
Reid warned Frist in a letter that if Republicans persist Democrats will fight back, using obstructionist devices that remain to shut the Senate down. Let them try, say Republican activists like Rush Limbaugh, who has insisted in his call-in show this past week that the issue is "a win-win" for Republicans.
"I don't think it's a question of 'if,' I just think it's a question of when and how this gets done," Limbaugh said during his program Thursday, "and I think that it's about time." A survey released Friday by Judicial Confirmation Network, a grass-roots organization with close ties to the Bush administration , found strong bipartisan support for bringing all judicial nominations to a vote.
Among those surveyed 78 percent said "senators have a constitutional duty to give an up-or-down vote to a nominee for the U.S. Supreme Court." The numbers agreeing to that statement were almost indistinguishable by party: 80 percent of Republicans and 77 percent of Democrats. Washington University political scientist Steven Smith, debating the issue in an online exchange, said Democrats were in the position of defending an institution, the filibuster, that has most often been associated with conservative causes - such as blocking for years the civil rights laws that were finally enacted in the 1950s and 1960s.
"Weighing the costs and benefits of a high cloture threshold is not easy," Smith wrote, referring to the 60 votes required to cut off debate and bring an issue to vote. "Personally, I would take a Bush appeals court nominee today if it meant that we could have had meaningful civil rights legislation at an earlier date."
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