For years activist courts, aided by liberal interest groups like the ACLU, have been quietly working under the veil of the judiciary, like thieves in the night, to rob us of our Christian heritage and our religious freedoms. Federal judges have systematically grabbed power, usurping the constitutional authority that resides in the other two branches of government and, ultimately, in the American people. (Tony Perkins, president of Family Research Council and organizer of "Justice Sunday," 4/15/05)

The filibuster against people of faith -- The filibuster was once abused to protect racial bias, and now it is being used against people of faith (Flyer for "Justice Sunday")

Following hot on the heels of the Schiavoist conference "Confronting the Judicial War on Faith" (featuring a Tom DeLay video appearance) comes "Justice Sunday: Stopping the filibuster against people of faith," a telecast designed to beam directly into churches across America, and with a scheduled guest star of Senator Bill Frist.

It seems like such a clever plan: get voters while they're in church and tell them that Democrats (presumably godless commies) are fighting "against people of faith" (and, presumably, Jesus himself). Only problem is, of course, that it is repulsively stupid, offensive both to Christianity and the American way of governing. As we wrote back in December, the idea that God prefers one or the other party, or even one Senate rule change, is a bit creative -- and the idea that you or I could know is simply arrogant and wrong. Furthermore, the implication that those who do not subscribe to the religious right's special way of running things do not qualify as "people of faith" is an insult.

More importantly, there is the notion behind all this that the ten extreme judges (of 207) filibustered by Democrats are being blocked because of their religious views. That is not true. Each of them blends some degree of incompetence and anti-government ideology -- and the most common theme is a disbelief in the constitutionality of federal regulation, or disbelief in the constitutionality of civil rights for, e.g., the disabled. For example, instead of Alabama's impeached Chief Justice Roy Moore, a hero to the religious right for his giant Ten Commandments' display, Bush nominated Bill Pryor, the the very same former Alabama Attorney General who removed Moore from office. Pryor was picked for his extreme flavor of "state's rights," which would consign tequal protection to the dustbin, and his disregard for individual rights in general.

I'm looking for that verse in the Bible that tells me to discard the words "No state shall" from the 14th Amendment.

Republicans should be careful what kind of Faustian bargains they make on this, especially when their own polling finds Americans don't like the nuclear option, the 'constitutional option,' the 'fairness option,' the 'Armageddon option' -- whatever you want to call it.

MYTH: The nuclear option reverses a Democratic rule change

Once upon a time, then Majority Leader Mike Mansfield, in collusion with then Majority Whip Robert Byrd, changed the rules. They did it because they wanted to … and they could. They created a "tracking" system that was a power grab finesse. It allows the majority leader (then Mansfield, now Frist) to have more than one bill pending as unfinished business.... The so-called ‘nuclear option' is a rare parliamentary procedure that would bar the filibustering of judicial nominees. It would also correct the previous Democrat-fueled abuse of power. (Geoff Metcalf, "Democrat obstructionism," NewsMax, 4/18/05) (copy boy for Jack Kemp, "Force a real filibuster, if necessary," Town Hall, 11/15/04)

REALITY

It is true, as Kemp/Metcalf claim, that Democrats introduced a system to keep other business going in the face of a filibuster back in '75. But what these clowns don't mention is the obvious: that Democrats were in the majority! That means that the filibusters were being done by Republicans, and Democrats, far from either supporting the filibusters or trying to eliminate the filibuster itself, made a change to keep the filibuster around while still passing bipartisan bills. How was that possibly a "Democrat-fueled abuse of power," when they were in effect granting a kind of physical concession to Republicans, in exchange for passing bills Republicans would pass anyway?

Now, we're not saying this two-track system remains a great idea, if it ever was one -- perhaps the nation, thanks to C-SPAN, would benefit from a live filibuster rather than opaque parliamentary maneuvering. So much crucial legislation gets slipped into amendments and reconciliation and gets passed on party lines without the public even being aware of what happened. A committed 41 senators could elect to shine the spotlight on the process and play a very public game of chicken.

But that is not even what Republicans are threatening. They would keep the two-track system for some things, but entirely eliminate the filibuster for one particular class of business -- you would still be able to filibuster the National Endowment for the Arts and gun control bills but not lifetime judicial appointments, one of the most important jobs before the Senate, affecting every American in ways Republicans aren't willing to speak openly about. The 'nucular option' is obviously designed to narrowly accomplish something (a cloture vote on extreme judges) that Republicans can not accomplish by following their own rules.

Breaking those rules now, to change the rules, is a transparent attempt to sidestep procedure for one 'exceptional' end -- packing the courts with base-pandering extremists.

MYTH: Filibustering extreme judges is unprecedented

It's impossible to reconcile the ideal of comity with summarily denying nominees the courtesy of an up-or-down vote on the Senate floor.... But let's call this "nuclear option" by its proper name: the fairness option. Senate Democrats are the ones who have, in effect, gone nuclear--requiring a supermajority of 60 senators to approve judges.... [I]n the long history of the United States, filibusters have never been used by a minority systematically to block a president's judicial nominees. (Philip Terzian, "The fairness option," Weekly Standard, 4/25/05)

The current obstruction of judges is no "traditional" filibuster: it is the first time in more than 200 years that either party has filibustered to keep judges with majority support off the federal bench.... The Constitution expressly gives the president — and only the president — the power to nominate federal judges. All the Senate can do is say "yes" or "no" to the president's choices. That is the "check" in the "checks-and-balances" system, to make sure no unqualified nominee becomes a federal judge. It does not give Senators — and a minority of Senators at that — the power to insist on judges who suit their own ideology. (Wendy Long, "Filibuster myth-busters," Washington Times, 4/15/05)

REALITY

In fact, as we have pointed out many times, Democrats have used to the filibuster to block just ten of the most ideologically extreme or simply unqualified judges, while allowing more than 200 to pass, all of them presumably conservatives and Republicans. To be specific, who are these judges? Nobody anybody outside the beltway is likely to have heard of. That's why it's especially important to slow down the otherwise automatic confirmation of these nominees, who would go on to shape the interpretation of laws affecting all Americans.

* Terrence Boyle, now in committee, combines an extreme ideology -- disregarding established law protecting civil rights for women, the disabled, and public employees -- with sheer incompetence. His decisions have had to be reversed by higher courts more often than almost anybody else -- and usually for what they call "plain error."

* William G. Myers, a cattle and mining lobbyist who was named by Bush to be solicitor for the Department of the Interior, where he continued his lobbying from the other side. The Idaho Statesman wrote of his time as solicitor, "Myers sounds less like an attorney, and more like an apologist for his old friends in the cattle industry." Based on his near total lack of experience, the American Bar Association gave him a low qualified/not qualified rating -- hardly indicating the capability to serve competently ona U.S. Court of Appeals.

* Janice Rogers Brown of California, nominated to the D.C. Circuit (which hears cases involving the federal government) finds herself far to the right of even Scalia and Thomas in anti-government ideology -- she has spoken of the "Revolution of 1937," referring to the time when the Supreme Court upheld New Deal legislation such as Social Security, as "the triumph of our socialist revolution." You can bet how she will behave when hearing any case on federal regulation. Like Myers, she received an unusual qualified/not qualified rating.

* Priscilla Owen, who fellow Texas Supreme Court justice Alberto Gonzales (now Attorney General) sharply criticized for conservative judicial activism, has a reputation for rewriting laws to fit her preferred outcome, typically adverse to individuals' established rights.

And six more like them. These last two, Brown and Owen, have apparently been selected as the ones to push if the GOP decides to go ahead with the nuclear option, which is odd -- their creative incompetence and anti-government ideology is far to the right of the public's taste. The problem the Republicans have, I suppose, is that any judge who isn't so unsavory as to hurt their cause has already been approved.

These nominees do not deserve to be on the bench -- they were not born with anything special that places them higher in value than hundreds of more qualified possible candidates. Nor does the president -- any president -- deserve to have all of his nominees automatically approved. If that were the case, then the Constitution would not require the Senate's consent.

But it does require the Senate's consent. Note, the Constitution doesn't mention a particular roughshod vote -- this consent is granted the same way anything else goes through that body. Nominations may be blocked a number of ways -- for example, more than 60 of Clinton's judicial nominees were blocked in committee through a variety of procedural guards (which were eliminated when Bush took office).

And a handful of Clinton nominees who passed the committee gauntlet were then filibustered, as we have mentioned -- and yes, contrary to the ahistorical claims of some Republicans, these were appellate nominees like Bush's: as recently as five years ago, Richard Paez and Marsha Berzon were both filibustered in their nominations to the 9th Circuit Court of Appeals. And while filibustering Lee Sarokin's nomination to the 3rd Circuit, Sen. Orrin Hatch nobly called the filibuster "one of the few tools that the minority has to protect itself and those the minority represents." Each of these three was eventually appointed, proving that they indeed had "majority support."