[Mb-civic] Revisiting the Senate's 'nuclear' option - Jed Shugerman - Boston Globe

[William Swiggard]

Revisiting the Senate's 'nuclear' option

By Jed Shugerman  |  September 12, 2005

A SECOND opening on the Supreme Court raises the stakes for the Senate 
hearings and doubles the chances of the Senate going ''nuclear": The 
Senate Democrats filibuster, the Republicans vote to change the rules 
for closing debate, and the Democrats grind the Senate to a halt. To 
paraphrase ''Dr. Strangelove," it is time to stop worrying and love the 
bomb.

The filibuster is designed to keep debate open procedurally, but the 
threat of a filibuster should be used to foster debate substantively. 
The Senate Democrats should announce that they will filibuster a nominee 
who evades questions, answers questions inconsistently, or seems to be 
dishonest. If the nominee prevents debate from beginning, the senators 
should block it from ending.

But the flip side is that if the nominee candidly espouses views that 
seem extreme, the Senate Democrats should commit themselves to defeat 
the candidate only by an up-or-down vote. If they cannot muster 51 votes 
after an open hearing, then either the candidate is not so extreme or 
they need to campaign on these issues in the next election and win.

 From all quarters, the Judiciary Committee hearings have been depicted 
as a game of lawyerly cat and mouse, a public charade of evasions. 
However, this portrayal misrepresents the recent history. The two most 
recent nominees, Ruth Bader Ginsburg and Stephen Breyer, were more 
forthcoming. Certainly no one would confuse their testimony with a 
special edition of constitutional confessionals on Oprah, but they 
provided relatively clear guides to their judicial approach, even on the 
most controversial questions. Some have suggested that the ''Ginsburg 
rule" is a refusal to hint at future rulings, but in fact, her rule was: 
If I've written about it, I'll talk about it, and offer more than strong 
hints.

Obviously nominees cannot answer every detailed legal question, nor 
should they guarantee any outcomes. Lawyers and judges must be 
persuadable, but they also must have leanings and general perspectives 
on the great legal questions. An open mind is not an empty mind, but one 
that experiments with positions, reflects on conflicting ideas, and 
engages in honest debate.

Supreme Court justices have the unparalleled privileges of life tenure 
and the last word on all constitutional questions -- a necessary 
''countermajoritarian" power, but one that is in tension with democratic 
self-rule. Senate confirmation gives some democratic stamp of legitimacy 
to the court, but only if the nominees first have answered the Senate's 
general substantive questions.

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/09/12/revisiting_the_senates_nuclear_option/
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