Since last October, when the Supreme Court made public that William Rehnquist was suffering from thyroid cancer, it’s been plain that the chief justice is firmly ensconced in the Court’s departure lounge—the only question has been when, exactly, Elvis would leave the building. Now we know. With Rehnquist doing his work from home, he seems committed to hanging on until the term ends in June. Then, retirement. And then, as surely as night follows day, a battle over his replacement that’s likely to make the tussles over Robert Bork and Clarence Thomas look almost civilized.
And that, I hasten to add, is Dr. Pangloss’s forecast. For down in Washington, another fight is brewing over the future of the Supreme Court—a fight, in fact, whose consequences, both political and jurisprudential, can’t be overstated. Ever since November 2, Republicans have been threatening a procedural maneuver known in Washington parlance as the “nuclear option”—a change to the rules of the Senate, advanced by Majority Leader Bill Frist, that would effectively bar Democrats from filibustering judicial nominations. And at some point in the next few weeks, they just might push the button.
Though the nuclear option was ostensibly designed to overcome Democratic filibusters of George W. Bush’s appellate-court nominees—twelve of whom he recently, defiantly renominated—it would apply to Supreme Court appointments, too. With Rehnquist on his way out and more justices soon to follow, Republicans, with nothing more than a bare 51-vote majority (as opposed to the 60 needed to halt a filibuster), could confirm anyone they pleased. “I keep saying to people, ‘I know you care about the Supreme Court,’ ” says People for the American Way president Ralph Neas. “But in the next four to eight weeks, there could be a vote that would render moot all the future votes on Supreme Court nominees. The right knows this is its 45-month window to shape the Court for the next 30 to 40 years. If Republicans win on the nuclear option, they could get John Ashcroft confirmed as chief justice, or Pat Robertson.”
For Democrats, opposing the nuclear option tooth and nail is obvious, instinctive, almost a matter of muscle memory. But for the GOP, the issue is already turning out to be a good deal trickier, and in ways that are quite revealing: about the hairline fissures now appearing in the edifice of Republican Party unity; about the difficulties of being a radical party in control of what are, at bottom, fundamentally conservative (in the old-fashioned sense) institutions; and about the challenges of building a stable, lasting political majority while keeping the red-meat-scarfing loyalists who elected you happy and sated.
Among the scarfers, the desire to storm what they see as the last branch of government controlled by the decadent left and pillage at will is ferocious and all-consuming—a point hammered home for me when I flew down to Washington in February for the Conservative Political Action Conference. For more than 30 years, CPAC has been the movement’s revival meeting, attended by several thousand of the most ardent Reaganauts, Falwellians, and dittoheads you could ever hope to meet. This year, they sang in unison, assailing the filibuster rule as an impediment to their counterrevolution.
Here was Rick Santorum, clucking about his hope that Democratic Senate leader Harry Reid “will come to his senses,” but warning that if he doesn’t, Santorum would be “happy to go to the country and say, ‘I’m for the Constitution.’ ” And here was Senator John Cornyn of Texas, a Judiciary Committee member, being roundly cheered for his suggestion that “we shouldn’t call it the nuclear option—we should call it the majority-rule option.”
The substance of the claims made in its favor by the CPAC folks was almost comically thin. The arguments, as best as I can make out, boil down to two: that filibustering to block political appointees is unconstitutional and that the Democratic use of it to thwart Bush’s nominees is wholly unprecedented. The second of these founders on reality: Republicans blocked almost exactly as many of Bill Clinton’s nominees as Democrats have George W. Bush’s. And the first claim founders on consistency: If filibusters are unconstitutional now, they must’ve always been unconstitutional, yet when Republicans were in the minority in the Senate, no one apparently thought to mention it.
The obvious weakness of the Republican arguments is grist for Ralph Neas’s mill. Heavily bankrolled by liberal funders the right would consider borderline satanic, he’s built himself a high-tech war room for the anti-nuclear campaign. He’s also enlisted an A-list cast of Democratic operatives, from former Clinton press secretary Joe Lockhart, media guru Carter Eskew, and pollster John Martilla to a coterie of former Judiciary Committee staffers he dubs the “sons and daughters of the Senate.”