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Hail! hail! The gang's all here!

By Paul M. Weyrich
web posted July 5, 2005

What do Senator Michael DeWine (R-OH) and Senator Linsdey O. Graham (R-SC) and the rest of the infamous GOP Gang of 7 have to say for themselves now? The constitutional option, from which John S. McCain (R-AZ) and his cohorts walked away, was about the United States Supreme Court. It was not merely about getting a few judges on the U.S. Courts of Appeal, although that is important. The retirement of Justice Sandra Day O'Connor sets up the battle of the century. Bigger than Robert H. Bork. Hotter than Clarence Thomas.

This first vacancy in a decade, and the first of the George W. Bush Presidency, will be the ultimate battle. That is because Sandra Day O'Connor has been the swing vote on many issues, such as the vote in 1989 to uphold Roe v. Wade. Let's be honest. That is what this battle really is about but neither side will admit it.

Because the constitutional option or what Liberals call the nuclear option was not exercised by Majority Leader William H. (Bill) Frist thanks to the Gang of 7 "rescuing the Senate from utter disaster" (their words, not mine), the rules were not changed. That means it could require 60 votes to confirm a Supreme Court Justice. Poor President Bush. Had the rules been changed President Bush could have appointed the most qualified person in the nation for that position, relying on his 55-vote majority in the Senate plus Nebraska's Senator E. Benjamin (Ben) Nelson, the only more-or-less conservative Democrat in the Senate. But now, even if President Bush has the support of all 55 Republicans and if Senator Nelson votes with them, the President still would need four more votes to overcome a likely filibuster of a well-qualified Supreme Court nominee.

What should the President do? Should he say, "I'm going to forget about the votes I need to confirm a United States Supreme Court Justice. I'm going to nominate the best candidate regardless. If the Democrats block the nominee the blood will be on their hands." Or should the President negotiate with the seven Republicans and seven Democrats (Gang of 14) who walked away from the Senate Leadership? Should he try to choose a nominee acceptable to the Gang of 14, thus insuring enough Senate votes to break the filibuster? Sounds good unless you don't care to have Senators Robert C. Byrd (D-WV), Olympia J. Snowe (R-ME) and Lincoln D. Chaffee (R-RI), to name a few, determining whom the President will nominate.

In addition, Senator Patrick J. Leahy (D-VT), Ranking Minority Member of the Senate Judiciary Committee, arrogantly stated that he looked forward to helping the President select a United States Supreme Court Justice. And all Democrats but Senator Nelson signed a letter to the President virtually demanding that they be consulted on a possible Supreme Court nomination. The kind of candidate who would be acceptable to that crowd would make Justices David H. Souter and Ruth Bader Ginsburg look reasonable. So should President Bush anger his base and appoint someone who would have unanimous support in the Senate?

Thanks, Senators, for putting the President in that position. What is to be done? First, the entire Senate Majority Leadership (i.e., Senators Bill Frist (R-TN), Mitch McConnell (R-KY), Rick Santorum (R-PA), Jon H. Kyl (R-AZ) and Elizabeth H. Dole (R-NC)) needs to tell the President to remain strong. Then the Senate Judiciary Committee should report out some of its controversial U.S. Court of Appeals nominees. Terrence Boyle comes to mind. There are others. The Minority should be enticed to behave as they have since the 107th Congress. They should be put in a position where their base demands that they filibuster some nominees. When they do, Senator Fist should summon the Vice President and again should try to change the rules.

There is redemption. Senator DeWine's (R-OH) son was punished by voters when Senator DeWine deserted the President and the Majority Leader. (His son earlier led by double digits the race for a vacant Ohio House seat but came in a humiliating fourth in that contest.) A draft is underway to get Senator Graham a primary opponent in South Carolina in 2008. Senator John W. Warner would need Conservatives if he intends to run again. Each can return to exercise the constitutional option. Senator Susan M. Collins (R-ME) would be welcome to return as well. Senator McCain has his heels dug in so hard he would find it almost impossible to extricate himself, which is fine with me since this is one more nail in the coffin of the 2008 McCain Presidential effort. Senators Snowe and Chaffee always were counted as part of the opposition.

One more chance. Maybe it will work this time and all will be forgiven. Or maybe the Gang of 7 Republicans can extract a pledge from the Gang of 7 Democrats not to filibuster. Sounds unlikely, but it must be tried if the constitutional option proves impossible to exercise.

When the Gang of 14 did its number on the leadership of both parties the Democrats declared victory. Even Moveon.org said the Democrats had won. Then some of the most controversial of the Bush nominees for the U.S. Courts of Appeal were confirmed. Some Democrats said, "Wait a minute. We've been had."

Meanwhile DeWine and Graham said if the Democrats reverted to their usual pattern of behavior they would be willing to come back to the fold. Even Senator Warner said so, although he was willing to cut the Democrats more slack than the other two. If the headcount is correct Majority Leader Frist needs only two more votes to change the rules.

The Democrats now think that they lost and they are angry. Their base is increasingly leftist. Outside groups are ginned up on both sides of this battle as I have never seen in my many years here. It is going to be brutal. Pray for the President on this nomination. Pray he does the right thing regardless of the filibuster. Pray that either the Gang of 14 will guarantee that there will be no filibuster or that Senator Frist will succeed in exercising the constitutional option. So much rides on this decision. Should the President name his nominee now and let outside groups battle over him or her all summer? Or should he name the nominee around Labor Day, hoping for a quick battle in the Senate this autumn? Pray the President makes the right call on this one, too. After all Sandra Day O'Connor said she will stay until a successor is confirmed. So the President need not worry about a deadlocked court anyway. That Gang of 7 Republicans: What they have on their conscience now for what they did. Pray that some will seek redemption.

Paul M. Weyrich is the Chairman and CEO of the Free Congress Foundation.


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