Nuclear Option

Back in 2005, when the Gang of 14 came together to thwart the Senate Republican majority's efforts to end the use of the filibuster against President Bush's judicial nominees, Sen. Jeff Sessions could barely hide his disappointment that he and his Republican colleagues did not get the chance to deploy the "nuclear option":

I am disappointed that this agreement did not provide the other nominees the right to a vote. I was prepared to support the Constitutional option, because these systematic filibusters amounted to an affront to the Constitution and could not be allowed to stand. I hope that all nominees will now receive fair treatment in this body and that the character assassinations and filibusters will disappear.

But now times have changed and Sessions is writing op-eds in the Washington Post saying that for Republicans not to filibuster President Obama's nominees would amount to "unilateral disarmament":

To be clear, I believe that the president is entitled to a reasonable degree of deference on his judicial nominations. I supported more than 90 percent of President Bill Clinton's judicial nominees, and I hope I am able to do the same for President Obama, even if they would not be my top choices.

But I take seriously the Senate's constitutionally mandated role to "advise and consent," and I am obligated to oppose nominees who have demonstrated either an unwillingness to subordinate themselves to the Constitution or a desire to advance a political, social or economic agenda from the bench.

This year, a number of my colleagues and I have voted against just three judicial nominees, including Justice Sonia Sotomayor. Only in the case of Judge Hamilton have we raised a procedural objection to Majority Leader Harry Reid's desire to proceed to a vote.

For Republicans to ignore the changed rules would be to acquiesce in a system where 60 votes are needed to confirm judges nominated by Republicans, but only 51 are required to confirm judges nominated by Democrats. To allow such a double standard would be akin to unilateral disarmament.

So Sessions hated the filibuster when it was being used against President Bush's nominees and wanted to get rid of it entirely, but was unable to do so due to an agreement among a handful of Senators, and now he is that it would be irresponsible for him not to launch filibusters against President Obama's nominees, despite saying just a few years back that he hoped that "filibusters will disappear"?

And for the record, Sessions' claim that he's "voted against just three" of Obama's judicial nominees means that he's voted against fully 30% of Obama nominees ... that would be akin a Democratic  senator having voted against nearly 100 [PDF] of President Bush's judicial nominees.

Back in March, President Obama nominated David Hamilton to a seat on the 7th Circuit Court of Appeals and immediately the Right set about trying to kill his nomination. They failed and Hamilton was voted out of the Senate Judiciary Committee in June and has since been waiting for a confirmation vote on the Senate floor. 

And if Sen. Jeff Sessions gets his way, Hamilton won't ever get one, as Sessions is trying to round up support for a filibuster of his nomination by sending around a letter [PDF] to his colleagues laying out his opposition to the nomination which concludes with this telling choice of language:

This is not the type of service that should be rewarded with a promotion. Indeed, this is one of those extraordinary circumstances where the President should be informed that his nominee is not qualified. [emphasis added]'

Back in 2005 when the Gang of 14 sought to prevent Republicans in the Senate from deploying the "nuclear option" by doing away with the use of the filibuster on nominations altogether, seven members of each party agreed that they would only support future filibusters under, you guessed it, "extraordinary circumstances": 

Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should be filibustered only under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

Hamilton was literally the very first judicial nomination made by President Obama and he has the support of his home state senator, Richard Lugar ... but Sessions seeks to prevent an up-or-down vote on his nomination, which is quite a change from what he was saying back when President Bush was still in office:

I have stated over and over again on this floor that I would refuse to put an anonymous hold on a judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her up or down. But don't hold them in this anonymous unconscionable limbo...

UPDATE: The above quote attributed to Sen. Sessions was actually Sessions quoting Sen. Leahy, though the context of the entire quote still makes clear that Sen. Sessions opposed the use of the filibuster against judicial nominations: 

But this delay makes a mockery of the Constitution, makes a mockery of the fact that we are here working, and makes a mockery of the lives of the very sincere people who have put themselves forward to be judges and then they hang out here in limbo. Senator Leahy, now leading the filibuster, was on the floor talking about that. Back when the Clinton administration was submitting judges, he said:

I have had judicial nominations by both Democrat and Republican Presidents that I intended to oppose. But I fought like mad to make sure they at least got a chance to be on the floor for a vote. I have stated over and over again on this floor that I would refuse to put an anonymous hold on a judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her up or down. But don't hold them in this anonymous unconscionable limbo. .....

Well, I see Chairman Hatch is here. I know the time is a bit drawn. Chairman Hatch and the Republican leadership have been consistent on this issue, even when it was not to their political benefit to do so. We have opposed the idea of filibusters and have not supported it. The Democrats oppose them when it is convenient and support them when it is convenient. I think their position is untenable as a matter of principle and as a matter of public policy, and our country will not be better off for filibustering judges.

As do other previous quotes from Sen. Sessions:

Of the many reasons why we shouldn't have a filibuster, an important one is the Article I of the Constitution. It says the Senate shall advise and consent on treaties by a two-thirds vote, and simply "shall advise and consent" on nominations.

Historically, we have understood that provision to mean--and I think there is no doubt the Founders understood that to mean--that a treaty confirmation requires a two-thirds vote, but confirmation of a judicial nomination requires only a simple majority vote. That is why we have never had a filibuster. People on both sides of the aisle have understood it to be wrong. They have understood it to be in violation of the Constitution.

...

I think the American people are getting engaged, and they are telling us "we are tired of obstructionism," "we are tired of delays," and "we believe these nominees deserve an up-and-down vote." I could not agree more.

It looks like Manuel Miranda is back and up to his old tricks.  As I wrote back in 2006:

Ever since losing his job with Sen. Frist a few years ago, Manuel Miranda has refashioned himself as a one-man, right-wing force to be reckoned with on judicial nominations. Even before stepping down, Miranda was working behind the scenes, orchestrating the GOP’s 2003 “reverse filibuster” protest.

After a short-lived disgrace caused by his run-in with basic ethics, Miranda returned to the scene with the launching of the National Coalition to End Judicial Filibusters, since renamed the Third Branch Conference. Since then, Miranda has been behind just about every right-wing grassroots effort to force confirmation of President Bush’s judicial nominees.

As the original name of his organization suggests, Miranda, along with dozens of other right-wing leaders, pushed Senate Republicans hard to eliminate the use of the filibuster via the “nuclear option.”

Back in 2005, Miranda was routinely drafting letters [pdf], which were signed by dozens of other right-wing leaders, calling on Republican Senators to do away with the filibuster of judicial nominees once and for all:

As the representatives of millions of American voices, we write to ask you to end the judicial filibusters at the earliest possible moment and well before a Supreme Court vacancy should occur.

We believe that short of a compromise that guarantees an up or down vote at the end of debate, the Constitutional Options available to you will serve to honor the Constitution, restore Senate tradition, and protect judicial independence.

We believe that generations of Americans are called at moments to lay foundations for the future, and that this is one such moment.

Well guess what?  Miranda is back with the same coalition but a new letter [PDF] with new demands - namely, that Senate Republicans carry out a filibuster against Sonia Sotomayor.  But not one of those disgusting "partisan" filibusters that the Democrats used, but rather one of those glorioius and noble" traditional" filibusters that protects the Constitution:

A Democratic Filibuster

There has been much distraction in discussing whether the Republican Minority would or could muster a “Democratic filibuster,” i.e., a filibuster used to obstruct a Senate confirmation vote. We recognize that Senate precedent has been altered by the systematic use of the “Democratic filibuster.”

...

We remind you that the Republican Party Platform, which almost all Republican Senators voted to adopt, establishes that you will not support a “stealth nominee” or a nominee who does not display fidelity to the Constitution.

Even so, no credible person, if any, has called on Senate Republicans to brandish a “Democratic filibuster.” We call on you instead to display leadership, if the nominee merits it, in preparing for the use of the traditional filibuster, not intended to obstruct, together with moderate Democrats, so that the debate on the Senate floor is appropriately long and, therefore, suitably catalyzed to the American people.

As Miranda explains it:

But in an interview, Mr. Miranda said their stance was not a contradiction because they want Republicans to use the procedural tactic for a different purpose than what he called a “Democratic filibuster.”

The Democrats, he said, sought to obstruct the Senate’s work by blocking confirmation votes on certain nominees forever. By contrast, he said, his coalition is seeking what he called a “traditional filibuster,” which would block the confirmation vote for some period of time but not forever.

“A Democratic filibuster is for the purpose of preventing a vote, as they brandished it,” Mr. Miranda said. “But a traditional filibuster to prolong debate is just fine.”

Do I need to point out the irony in the fact that the group once known as the National Coalition to End Judicial Filibusters is now explicitly calling for the use of a judicial filibuster?

I didn't think so.

Back in 2005, when seven Republicans and seven Democrats in the Senate came together to form the "Gang of 14" in order to prevent Senate Republicans from deploying the "nuclear option" to do away with the filibuster of judicial nominees, they agreed to cloture votes on three controversial Bush nominees and pledged that, from that point on "nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist."

What exactly the phrase "extraordinary circumstances" meant, nobody was sure, as even the agreement reached by the group openly stated.

Following this agreement, no Bush administration judicial nominees were successfully filibustered - not even the nomination of Samuel Alito to sit on the Supreme Court.  Considering that Alito was nominated only after the Right had destroyed President Bush's first choice, Harriet Miers, and forced her to withdraw. If anything met the vague "extraordinary circumstances" standard, it was Altio's nomination, but even then efforts to filibuster his nomination went nowhere.

Today, the Committee for Justice's Curt Levey weighs in on the Senate Republicans' threat to filibuster any of President Obama's judicial nominees if they are "not consulted on, and approve of, a nominee" from their respective states, praising them for standing together and standing up to the Democrats' hypothetical attempts to ram through a bunch of "extreme nominees":

The most significant aspect of yesterday’s letter is the fact that it was signed by all GOP senators. All 41 Republicans will be needed for the party to use the filibuster – or threat thereof – as a tool to force extended debate on Obama’s judicial nominees and, if necessary, to block nominees so extreme that they meet the "extraordinary circumstances" standard set forth in the Gang of 14 agreement. Without such a tool, Democrats would likely rush Obama’s more extreme nominees through the Senate in order to avoid the controversy that would spring from a full airing of their records.

But the Senate Republicans' letter doesn’t threaten to filibuster in “extraordinary circumstances” - it threatens to filibuster every single nominee unless Obama caves to their specific set of demands. Levey is claiming that any nominee they deem "extreme" automatically triggers the "'extraordinary circumstances' standard" and thus justifies a filibuster when the original intent of that Gang of 14 provision was to do away with the filibuster except for under, you know, "extraordinary circumstances."

How did something designed to end the filibuster when Democrats were using it become the justification for the filibuster now that Republicans are intending to use it?

Furthermore, the text of the Gang of 14's "Memorandum of Understanding on Judicial Nominations" explicitly limited its scope to the 109th Congress:

This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress.

The entire agreement was designed to avoid a nuclear showdown in the Senate during the 109th Congress, yet Levey is claiming that it somehow created a permanent standard that exists to this day when it clearly does nothing of the sort and was never intended to do so.

So, aside from the fact that the Gang of 14's compromise was limited to a past Congress and the GOP letter doesn’t refer to "extraordinary circumstances," Levey analysis is spot on.

The San Francisco Chronicle has a good article on how the folks behind Yes on 8 are trying to bar the Campaign for California Families, Randy Thomasson, and Mat Staver from getting involved in the on-going legal dispute because of the latter’s extreme anti-gay views, which Yes on 8 fears will make them all look bad: 

The group, now known as the Campaign for Children and Families, is run by Randy Thomasson, who for years has been one of California's most visible opponents of gay rights and what he bills as "the homosexual agenda."

The people behind Prop. 8 have been butting heads with Thomasson for years, arguing that his efforts to outlaw same-sex marriage and curb domestic partnership arrangements are a long step further than a majority of California voters is willing to go.

In 2005 and again in January, Thomasson and his allies proposed initiatives that not only would bar same-sex marriage but that also "voids or makes unenforceable" rights conferred by California law on couples, gay or heterosexual, registered as domestic partners, including community property, child custody, hospital visitation and insurance benefits.

"It was like the nuclear option to obliterate the entire domestic partners law," [Andrew Pugno, general counsel for the Yes on Prop. 8 campaign] said. "We were constantly hassled by that organization, who thought we weren't aggressive enough."

…

But the disputes between the groups have grown in the past few days, with Thomasson launching an all-out attack against the Supreme Court for accepting the challenge to Prop. 8, a court decision Pugno and others from ProtectMarriage.com had welcomed.

"If the court disobeys the constitution by voiding Prop. 8, it will ignite a voter revolt," Thomasson said in statement released after the court agreed Wednesday to hear arguments over the validity of the constitutional amendment. "The court is playing with fire by threatening to destroy the people's vote on marriage."

Pugno and others from the Prop. 8 campaign want to avoid such fiery challenges and threats to the court and keep matters on a quiet legal level until the court rules on same-sex marriage sometime after March.

"What we are not doing is discussing the possibility of recalling justices who oppose us," Ron Prentice, chairman of the Yes on Prop. 8 effort, said in an e-mail to supporters Wednesday. "Making threats to recall justices from office is counterproductive and harmful to our chances of winning in court."

So the “moderates” who want to deny equality for gays are afraid that people like Thomasson, who’s been busy freaking out about everything the use of “Party A” and “Party B” on marriage licenses and proposals for Harvey Milk Day, are going to make them look too extreme?  I think that, considering that they just spent tens of millions of dollars to getting California voters to strip gay couples throughout the state of their constitutional right to marriage, it’s a little late for the Yes on 8 troops to start worrying about looking like of bunch of anti-gay extremists.

Back when the issue of judicial confirmations was heating up in the Senate, at the center of the Republican efforts to confirm controversial nominees was Jay Sekulow of the American Center for Justice.   As a member of the “Four Horsemen” along with C. Boyden Gray, Edwin Meese III, and Leonard Leo, Sekulow was a inside player in the battle over the “nuclear option” and the confirmations of John Roberts and Samuel Alito. 

Along the way, Sekulow created a new group called The Judicial Confirmation Network that was designed to give the appearance of grassroots support for the efforts:

It was a subtle bit of targeting that dovetailed with another project under way in an office just above the radio studio. That's where Gary A. Marx, head of the grass-roots arm of Mr. Sekulow's campaign, was meeting with a Maine activist ginning up telephone calls, letters and editorials aimed at pushing Ms. Collins into the antifilibuster camp.

In the 2004 campaign, Mr. Marx, 29, was the Bush-Cheney national conservative coalition director who helped organize church-sponsored voter drives in Ohio. In January, Mr. Sekulow invited Mr. Marx to set up the Judicial Confirmation Network in his offices so they could combine forces.

Mr. Sekulow uses his Senate contacts to track the status of the debate and identify wavering lawmakers. While he targets them on the radio or through his regular emails, Mr. Marx follows up with state-based groups that can be important to a senator's political career.

The JCN quickly made a name for itself, spending hundreds of thousands of dollars on the efforts only to become little more than a shell once the battles were over.  Little was heard from its two employees, Gary Marx and Wendy Long, until both showed up on Mitt Romney’s National Faith and Values Steering Committee and, in the meantime, the JCN essentially went dark, having not even issued a press release since July of 2007.   Until today, that is, when Long resurfaced to attack Barack Obama for his answer during a question at Rick Warren’s faith forum about which Supreme Court judges he would not have nominated:

All this speaks volumes about the kind of judges Obama would appoint, and the way he would fill several potential vacancies at the Supreme Court that could arise during the next President's term in office. Obama wants Justices who will do his bidding, who will implement the preferred policies of the liberal establishment - not Justices like Thomas, Scalia, Roberts and Alito, who understand that the role of a judge is not to legislate from the bench.

But that was apparently enough to get her quoted at length in an article on FoxNews.com:

“Apparently, Obama can do no better than to recycle discredited statements of Harry Reid when it comes to Justice Thomas. Like other liberal elites, Obama cannot stand it when a black man strays from the ideological plantation and refuses to implement liberal policies through the courts. But Obama will never point out any intellectual deficiencies in Justice Thomas’s work, because he can’t. Justice Thomas’s opinions consistently reveal faithfulness to the Constitution, judicial modesty and deference to the will of the people in our representative democracy. That is opposed to everything that Obama and the liberals are trying to do in grabbing power from the people and giving it to the courts,” she said.

It has been nearly three years since fourteen senators - seven Democrats and seven Republicans – hammered out a deal that preserved the use of the filibuster on judicial nominees and, judging by an article in the New York Times, the Right still hasn’t gotten over it:

Back in 2005, Senator John McCain of Arizona and fellow members of the so-called Gang of 14 were hailed as heroes in some quarters when they fashioned an unusual pact that averted a Senate vote on banning filibusters against judicial nominees.

Now Mr. McCain’s central role in that effort, which cleared the way for confirmation of some conservative jurists, is cited as one reason for lingering distrust of him among many conservatives. The power to appoint federal judges is seen as one of the most crucial presidential roles by many on the right, and some continue to believe the agreement undermined the Republican leadership at the precise moment the party was about to eliminate the ability to use procedural tactics to block judges.

James C. Dobson, an influential conservative leader, noted Mr. McCain’s role in the bipartisan Gang of 14 in his announcement that he could not support the lawmaker as the Republican nominee under any circumstances. Other conservatives still resent it as well.

“When people hear he was part of the Gang of 14, it leaves a bad taste in their mouths,” said Phil Burress, president of the Citizens for Community Values, based in Ohio.

Considering that, thanks to the deal, President Bush managed to seat right-wing ideologues such as William Pryor, Janice Rogers Brown, and Priscilla Owen on the federal bench – not to mention John Roberts and Samuel Alito on the Supreme Court – a lot of people have been wondering just what the Right is so upset about and why they insist on holding McCain’s participation against him.  

In short, they were outraged, and seemingly continue to be outraged, that Senate Republicans failed to take advantage of an opportunity to jettison tradition in order to squash Democrats beneath their feet. 

The “nuclear option” -- as the proposed attempt to do away with the filibuster was known despite Republican attempts to rechristen it the “constitutional option” -- was first floated back in 2003 in response to filibusters against Miguel Estrada and Priscilla Owen.    Immediately, the Right rallied behind the idea, with groups like Committee for Justice, Family Research Council, Focus on the Family, the Center for Reclaiming America, Concerned Women for America, and the American Center for Law and Justice all serving as vocal advocates. 

When, two years later, their attempts to destroy the filibuster and squash the Democrats were seemingly thwarted by the "Gang of 14," the Right was apoplectic, as we chronicled in the days that followed the announcement:

Back in the 2005 and early 2006, the Family Research Council hosted a series of “Justice Sunday” events timed to coincide with important developments in the political battle over judicial nominations.  

The first event, titled “Stop Filibustering People of Faith,” claimed that some of President Bush’s appellate court nominees were being filibustered because of their religion and was designed to pressure Senate Republicans to deploy the so-called “nuclear option.”

“Justice Sunday II: God Save the United States and This Honorable Court” was held some months later and timed to coincide with the beginning of John Roberts’ confirmation hearings for the Supreme Court while “Justice Sunday III: Proclaim Liberty Throughout the Land” was timed to coincide with the confirmation hearings for Samuel Alito.

The events featured a wide array of right-wing leaders and members of Congress such as Tony Perkins, Jerry Falwell, James Dobson, Richard Land, Tom DeLay, Bill Frist, and Zell Miller.  Among the lesser known speakers was Jerry Sutton, pastor of Two Rivers Baptist Church which hosted the “Justice Sunday II” event, who boldly declared:

“Number one, it's a new day.
Number two, liberalism is dead.
Number three, the majority of Americans are conservative.
Number four, you can count on us showing up and speaking out.
And number five, let the church rise.”

Presumably, this isn’t what he meant by the church being on the rise:

The Rev. Jerry Sutton, a prominent Southern Baptist pastor who lost a bid to become president of the denomination, is now facing an upheaval in the megachurch he leads, including complaints that he spent church money on his daughter's wedding.

…

[S]ome Two Rivers members are accusing Sutton of failing to abide by church rules and punishing those who question his authority.

"We have a fractured fellowship. Somehow, with the Lord's help, we need to put this church back together," Harry Jester, who's been in the congregation for 32 years, said at a church meeting July 28.

One of Sutton's former administrative assistants has also said Sutton looked at pornography on his church computer and had an affair with a church staff member — charges that the church denies. The church's executive pastor, Scott Hutchings, said human resource officials at the church investigated those charges and found no evidence that Sutton had looked at porn or had an affair.

…

About 600 members attended the July 28 meeting, which was organized by the church so that rumors and allegations could be addressed publicly. Sutton also attended, but did not respond to the allegations.

At the meeting, Hutchings relayed the accusations brought against Sutton, including charges that Sutton used church money to pay for his daughter's wedding reception and has kept members in the dark on church spending.

Hutchings defended the church budget and acknowledged that the church paid about $4,300 for a reception for Sutton's daughter that was open to all church members. He said Sutton personally paid for another separate reception outside the church.

Last week, according to the Washington Daybook, a “group of black pastors [held] a press conference, beginning at 1 p.m., to endorse Lt. Gov. Michael S. Steele in Maryland's Senate race.”  Among those endorsing Steele was Bishop Harry Jackson who likes to refer to himself as a Democrat primarily because “being able to say I'm a registered Democrat disarms many of the people who want to write me off.” 

Apparently, Jackson thinks that by calling himself a Democrat means he can get away with saying things like

Gays have been at the helm of a fourfold strategy for years, but the wisdom behind their spiritual, cultural, political and generational tactics is clearly satanic.

Given his views, it is no surprise that the Right has eagerly embraced Jackson, featuring him as a speaker at two Family Research Council events – “Justice Sunday,” where he complained that “Black churches are too concerned with justice” and “Justice Sunday II” – designed to push for the confirmation of right-wing Bush administration judges, and inviting him to appear at a rally alongside Senate Majority Leader Bill Frist supporting the use of the "nuclear option" to do away with the filibuster in order to confirm Judge Janice Rogers Brown.

Recently, Jackson declared that his top reasons for working to elect Republicans are

As a black evangelical, I’ve had to think about the unpleasant prospect of a Democratically-controlled House and Senate. If the Democrats are in power, the following problems will occur: 1) There will be no protection of traditional marriage, 2) Abortion-on-demand will be encouraged, 3) Religious freedoms will be attacked …

Joining Jackson in endorsing Steele was Rev. James Thompson of Integrity Church International in Landover, MD - and apparently Jackson’s fear that religious freedoms would be attacked by Democrats was shared by Thompson’s wife, Emma Jean Thompson, who is responsible for this

Sellers said the campaign knew nothing about a mailer that arrived yesterday urging support for Steele and declaring that Democratic Senate candidate "Ben Cardin Promises to Attack Jesus Christ, Pastors, Churches and Christians and to Take Away Blacks' Freedom If He Is Elected."

The piece criticizing Cardin, who is Jewish, was produced and distributed by Emma Jean Thompson, a Bowie woman who attended a news conference yesterday endorsing Steele.