The anti-nuclear option
By Bruce Walker
web posted July 18, 2005
If President Bush insists upon a conservative nominee to the Supreme Court, and if Senate Democrats balk at his nomination and threaten a judicial filibuster of, say, Judge Janice Rogers Brown, then the next step presumably would be the “nuclear option.” Because the Rules of the Senate are not explicit in limiting debate for judicial nominees, the Senate President (the Vice President) could treat the issue as a procedural matter subject to interpretation by a simple majority of the Senate, which would support the President.
While that may be the best course of action, here is another option that conservatives ought to consider, and one that goes to the very heart of federal judicial dictatorship. Rather than invoke the nuclear option, Republicans should seek to adopt by rule a requirement that two-thirds of the Senate are needed to limit debate on judicial nominations.
Why do this? Is either political party likely to get a two-thirds majority in the Senate? No. This would provide an iron clad protection of the rights of Republicans, so that no lifetime appointment to the federal bench could ever be made by any president unless that nominee was a conservative.
What would that do? It would allow presidents, including President Bush, to make recess appointments to the Supreme Court and to lower federal courts when the seat is vacant by resignation or death. And conservatives should make it a point of principle that no one is ever again appointed and confirmed to the federal bench – and this should be the explicit policy adopted.
President Bush would make a recess appointment of Judge Brown and Judge Owen, and Justice O’Connor and Chief Justice Rehnquist could retire. Mortality will claim Justice Stevens and several other justices within the next ten years or so, and presidents could soon be able to make recess appointments equal to a majority of the Supreme Court (and lower federal courts as well.) Eventually, a president would simply appoint at the beginning of each new administrative nearly the whole federal bench.
Would this not be dangerous for conservatives? Think. When was the last time that federal courts have protected our rights? What this would do is politicize, or rather democratize, the federal judiciary.
Presidential candidates would and should be asked who they would appoint as the nine justices to serve on the Supreme Court, and should defend those choices. No longer could presidents hide behind the skirts (or robes) of federal judges when the Constitution was contorted.
Recess appointments are only in effect while the Senate is in recess, but only a few hours would be sufficient for a recess appointed Supreme Court to issue any number of opinions, and, beyond that, the President also has the constitutional power to adjourn Congress when the two houses do not agree on adjournment. What does that mean? Presumably, whatever the President wants it to mean. If there is complete gridlock on judicial appointments, which may be desirable, then the President himself will have to determine his constitutional powers and exercise them.
Consider, for a moment, what that would mean ten years from now. Presidents, who must defend their actions before the people, would be responsible for how the Constitution is interpreted. If a federal judge believed that “under God” must be taken out of the Pledge of Allegiance or that gay marriages must be allowed under some penumbra of privacy, the President would be accountable to the people for having personally and exclusively selected that judge, knowing that the judge’s ideology was a factor in his election.
Leftists, who have only had one candidate since the end of the Second World War, LBJ in 1964, get a majority of all ballots cast for president, would probably want to find some check on presidential power. Good. Let us agree with the Left: we all need a check on a federal government in which the executive and judicial branches are one.
The Constitution, in fact, anticipated the need for such a check, but did not provide it within the frame of the federal branches but rather within the concept of a federal system. Once the Left sees that it will never acquire hegemony in the federal government, we should agree with the Left to devolve power back to the sovereign states. We could do so by amendment or by a federal statute or by other means, but the result would be the same: no federal judicial dictatorship and strong, diverse state governments. Rather than the “nuclear option,” the “anti-nuclear option.” 
Bruce Walker is a senior writer with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative.
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