Besides the continuing uproar over Tom DeLay, the John Bolton confirmation hearings, and the frenzied attacks on conservative judges, the other big news in Congress this week is whether or not the GOP is ever going to go through with its “nuclear option” and strip the Democrats of their ability to filibuster judicial nominees.
Over the past few weeks, the various reports I’ve read indicated that moderate Republicans are nervous about going this route because the Democrats have threatened to retaliate by bringing Congress to a halt using the black arts outlined in the Senate procedural rulebook. In short, they would “point of order” Congress to a standstill. But that seems entirely unlikely; as Michael Crowley argues in this week’s New Republic, this is a weak position for Democrats to be in. The president can always saunter on down to Capitol Hill and demand that they pass bill X or bill Y on “national security” grounds. (Indeed, Senate Minority Leader Harry Reid has already said he wouldn’t block bills dealing with national security or “critical government services.”) So the more likely story is that Senate Republican leader Bill Frist simply doesn’t have the votes he needs to go nuclear. Too many Republicans are worried that one day, they won’t be in the majority, and believe that the filibuster is more useful to conservatives than liberals.
The truly imaginative interpretation, meanwhile, is that Frist is simply afraid to abolish the filibuster. If the GOP Senate started passing the sort of judges that Christian conservatives want them to pass—judges who would ban abortion or eliminate workplace protections for gays or order a camera in every bedroom to regulate sexual activity—that Republican majority would be gone quite quickly. But again I’m not sure if this would actually happen or not; there are, after all, plenty of conservative judges who both oppose abortion publicly but are sufficiently committed to judicial precedent that they wouldn’t overturn Roe vs. Wade willy-nilly—a compromise that would seemingly satisfy everyone.
It’s also important to keep in mind that the ultimately Republican goal here isn’t to strip away Roe vs. Wade—after all, the party gets plenty of mileage out of its angry evangelical activists, and there’s no sense placating them—but to install lots and lots of pro-business judges who will roll back the sort of economic regulations crafted during and after the New Deal. Workplace standards, wage guarantees, labor regulations. That’s the end goal. Michael Scherer reported on this ongoing “judicial revolution” in Mother Jones a few years back and the piece is still very relevant today.