The Democratic Senatorial Campaign Committee (DSCC) sent out a mass e-mail from Kennedy to its supporters yesterday in which the veteran Democrat warns that “right wing judges” appointed by President Bush would pose a threat to “fundamental constitutional rights.”
“Now, our very ability to block the confirmation of these ideological judges is in jeopardy,” Kennedy states in the fundraising appeal. “Republican Senate Majority Leader Bill Frist has arrogantly threatened repeatedly to rewrite the longstanding Senate rules and eliminate the filibuster rule, the basic procedure to prevent a narrow Senate majority from running roughshod over the rights of the Senate minority.”
Kennedy states that the only way to prevent this “extraordinary power grab” is to elect more Democrats. He then hits up donors for contributions of $50, $100 or more.
The fundraising appeal makes specific use of the term “nuclear option,” which is used because Democrats have said the procedure would destroy the traditions of decorum in the Senate and lead to considerable upheaval.
Republicans also have conceded that the move would clear the political landscape but use the term “constitutional option” to emphasize what they consider to be the unconstitutional nature of the Democratic filibuster of several nominees to U.S. Courts of Appeals.
The Democrats’ fundraising appeal comes at a time when Judiciary Committee Chairman Sen. Arlen Specter (R-Pa.) is reaching out to committee Democrats to try to negotiate a solution to the judicial standoff. Several conservative groups have expressed their disappointment with Specter for trying to accommodate Democrats at a time when the groups say Democrats have used unprecedented tactics to stop judicial appointments.
Under the procedural move, the GOP would seek a ruling from the chair that the Democratic filibuster — which requires 60 votes to cut off debate on a nominee — is unconstitutional, allowing the Republicans to overrule the tactic with a mere 51-vote majority. Frist has said he has the needed 51 votes, although it appears that he may only have a majority that would hold under certain circumstances.
Meanwhile, two key Senate Republicans said they have not yet decided whether they will support the nuclear option.
“I don’t want the Senate to become the House,” said Sen. Gordon Smith (R-Ore.), comparing the Senate to the more regimented House. Smith said he was monitoring the debate and expressed support for Specter’s decision to try to resolve the issue through negotiations with Democrats, although he said he was slightly leaning toward supporting it under some circumstances.
Smith also said it would be a mistake to employ the option too soon, for fear it might harm the atmosphere in the Senate. “My personal preference is that it be used [on] a Supreme Court nomination.” He said the issue of the blocking of nominees to appeals courts wasn’t as compelling to the public.
Sen. Pete Domenici (R-N.M.) also said he hasn’t made up his mind, although he sounded more inclined toward the GOP leadership position. “My view is, I want to see what the Democrats are going to do about nominations.” If Democrats obstruct judges “arbitrarily,” he said, “then I’m going to go talk to Frist about being with him.”
Sen. Robert Byrd (D-W.Va.), considered the guardian of Senate rules and procedures, gave a floor speech yesterday outlining his opposition to the nuclear option. Republicans have cited actions Byrd took when he was Senate majority leader to curtail the filibuster as an argument justifying their right to stop the Democratic filibuster.
Byrd referred to the film “Mr. Smith Goes to Washington” and observed that today the fictitious Mr. Smith, played by Jimmy Stewart, would be called an obstructionist.
Byrd said, “The so-called ‘nuclear option’ purports to be directed solely at the Senate’s advice-and-consent prerogatives regarding federal judges, but the claim that no right exists to filibuster judges aims an arrow straight at the heart of the Senate’s long tradition of unlimited debate.”
Byrd referred to GOP filibusters of Democratic legislation, such as a 1914 filibuster of a $50 million appropriation for rivers and harbors, as well as a GOP filibuster of Franklin Roosevelt’s 1937 court-packing plan to expand the size of the Supreme Court during the New Deal.
Byrd also referred to Adolf Hitler’s use of constitutional means to push legislation through the German Reichstag at the start of the Nazi era. “And that is what the nuclear option seeks to do to Rule 22 of the Standing Rules of the Senate,” Byrd said, referring to the rule for cutting off debate.
In a related move this week, former White House Counsel C. Boyden Gray, a judicial activist with the Committee for Justice, circulated a memo asserting that the judicial filibuster violates the advice-and-consent clause of the Constitution and the proper separation of powers between the executive and legislative branches.