Opposition to the ‘Nuclear Option’
On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, with more than 180 member organizations, we urge you to oppose any efforts to eliminate the 216-year-old filibuster in the United States Senate. The elimination of the rights of the minority as embodied by the filibuster is contrary to the founding fathers’ vision of the Senate as a body of equals designed to protect against the tyranny of the majority.
Both parties have recognized the filibuster as a crucial tool in protecting the rights of the minority, and it becomes especially critical when the same party rules both the White House and the Senate. Former Senate Majority Leader Howard Baker wrote in 1993 that destroying the right to filibuster “would topple one of the pillars of American Democracy: the protection of minority rights from majority rule.” In 1995, when he chaired the Judiciary Committee, Senator Orrin Hatch said the filibuster is “one of the few tools that the minority has to protect itself and those the minority represents.”
In addition to protecting the rights of the minority, the Constitution assigns the Senate final responsibility to advise and consent on the President’s judicial nominees. This means that the Senate is required to evaluate every nominee on his or her fitness to serve on the federal judiciary and to reject candidates who do not convince at least three-fifths of the Senators that they are suitable for lifetime appointment. Over the last four years, the Senate has faithfully exercised this constitutional role by carefully examining President Bush’s nominees and has, thus far, confirmed 205 out of 215.
Yet Republican Senate leadership is now threatening not only to silence the voice of the minority by eliminating the right to filibuster unfit nominees, but it purports to do so by breaking the Senate’s Standing Rules – using a simple majority to eliminate the filibuster rather than the required 67 votes. This push for an unprecedented 100 percent confirmation rate will create greater acrimony among senators and slow down Senate business over a mere handful of re-nominated individuals. These nominees have already been considered and rejected by the Senate for having demonstrated records of hostility toward civil rights, workers’ rights, women’s rights, individual rights and civil liberties.
Rather than attempting to force these re-nominated individuals through by silencing all opposition, the President and full Senate should work in bipartisan collaboration to select federal judicial nominees. When Ronald Reagan had his first opportunity to name a Supreme Court Justice, he set aside the demands from his party’s far right and nominated a consensus candidate, Sandra Day O’Connor. Bill Clinton consulted with Senator Hatch before naming candidates who received genuine bipartisan support. LCCR urges President Bush to follow in this wise tradition and consult with Senators to nominate individuals that can be confirmed with support across party and ideological lines.
LCCR believes that the appointment of judges with bipartisan support is critical, because judges confirmed without support across party and ideological lines would likely reflect an extreme judicial philosophy. Accordingly, the opinions they rendered would not be likely to reflect mainstream jurisprudence on civil rights. As a result, the progress this country has made on civil and human rights could be jeopardized in the future.
The civil rights community has recognized and accepted the value of the filibuster even when it frustrated efforts to advance civil rights legislative goals. During the 1950’s and 1960’s, countless civil rights bills were filibustered. The Civil Rights Act of 1964 was not passed until it survived 75 days of the longest filibuster in history and the Senate voted 71-29 to end debate and finally passed the bill. This legislation was enacted because of long, hard work to build support across partisan, ideological, and regional lines. We worked to bring Americans together – not to push them farther apart. We never demanded the end of the system of checks and balances. In the end, we won the battle by changing votes and not by breaking the rules.
Finally, if the “nuclear option” was invoked and the rules broken, it would not only trample the delicate system of checks and balances envisioned by the framers of the Constitution, it would set a dangerous precedent that has implications far beyond our nation’s courts. There has never been a distinction between filibusters of legislation or of judicial nominees. If the filibuster of judicial nominees is banned in the Senate, there will be nothing to stop the majority from cutting off debate on regressive proposals concerning issues such as education, civil liberties, national security, and veterans’ benefits. Further, adoption of the “nuclear option” would endanger carefully constructed programs such as Social Security and health care and pose a great threat to laws designed to protect equality of opportunity.
For the reasons outlined, LCCR urges you to oppose the so-called “nuclear option” and any effort to eliminate senators’ right to filibuster. If you have any questions, please contact LCCR Deputy Director Nancy Zirkin at (202) 263-2880, or LCCR Senior Counsel Andrea Martin at (202) 263-2852.