Nuclear Option? Call It Constitutional Option

“Elections have consequences.”  (Barack Obama, 2009)

Indeed they do and the most important factor to consider in electing a president of the United States is what kind of justices will he or she appoint to the Supreme Court?  While a president can serve for a mere eight years, a Supreme Court justice holds that job for life (or as long as he or she can sit on the bench without nodding off).

Will the high court consist of justices who will faithfully decide cases based on the Constitution alone (preferred by conservative Republicans) or should the high court be made up of justices who see the Constitution as a “living instrument” that can be changed on a whim (preferred by liberal Democrats)?

That question was the deciding factor in the 2016 election.  A full 21 percent of us wisely said that the Supreme Court was the most important factor in deciding which candidate to support.  In this close election where both party candidates had high negatives,  57 percent of those voters picked Trump, while only 40 percent chose Clinton.

That was a wise choice.  Republicans and Democrats alike have nothing to fear from a justice who will simply interpret the Constitution, the document that has served us well for over 200 years.  It is the instrument that has enabled our republic to outlive its life expectancy.  Though the Constitution has been abused by a plethora of liberal justices over the years, its core principles remain intact. If this president and future presidents will refrain from giving appointments to jurists who want to bend it like Silly Putty, the basic principles of equal justice and limited government can be restored for the benefit of all.

Trump made the choice quite simple by offering voters a list of people from which he would choose his nominee to replace the late Antonin Scalia.

Majority Leader Mitch McConnell (in a rare show of strength) has promised to employ what is now known as the “nuclear option,” in necessary, to break a Democrat filibuster in order to see that Trump’s choice for the Scalia seat, Judge Neil Gorsuch, is approved.

While this declaration provoked a lot of hand-wringing from Democrats and dire predictions from a few white-knuckled media hounds in the Republican Party, the GOP has nothing to lose.

The use of the term, “nuclear option,” more correctly known as the “constitutional option,”  was first employed in 2003 by Mississippi Senator Trent Lott.  Lott, another lily-livered Republican, warned that ending the use of the filibuster for judicial appointments was a last resort and could have major consequences for both sides.

It should be noted that Republicans have had control of the Senate a scant number of years in the last decade.  Most senior members are simply afraid of their own shadows and know little of what it takes to lead.  Therefore, the so-called nuclear option (shiver, quake) was to be avoided at all costs.

It should also be noted that the filibuster (the art of talking a bill or nomination to death by the minority party) is simply a rule, little understood by the public; and its use, or threat of its use, serves to inflate the egos of senators who are prone to wallow in their own self-importance.   The House of Representatives abandoned the practice years ago and Senate leaders have changed the filibuster rule many times over the years so it is anything but sacrosanct.

The Constitution simply states that the president shall make these appointments with the “advice and consent” of the Senate.  The Constitution implies that this body can act by majority vote, since it spells out the cases where a supermajority is required, such as the ratification of treaties.

The reality is that neither Republicans nor Democrats have ever filibustered a Supreme Court nominee, even in the most extreme cases such as with liberal activist Ruth Bader Ginsburg.  In fact, Republicans, more often than not, approve Democratic Cabinet appointments, even when they control the upper chamber.  They respect the fact that voters have spoken and the sitting president has the right and the responsibility for those appointments.

Republicans have never exercised the so-called nuclear option to stop a Democrat appointment to the high court and it is highly unlikely they would ever do it in the future.  Therefore, they have nothing to lose by exercising this constitutional option and seeing that Trump makes good on his promise to put justices on the Supreme Court who will abide by our founding document.

Yes, elections have consequences and its time Republicans started acting like it.

One thought on “Nuclear Option? Call It Constitutional Option

  1. Great article. Informative for me in that treaties require a super majority. I believe I knew that but it didn’t take effect in my mind. I would like to understand the Constitution and Bill of Rights more thoroughly, like taking the Hillsdale College free offer, but my time is better invested in the several things on my plate and studying the Constitution and Bill of Rights would be a diversion and not aid me in my plateful of projects. One thing for sure, Supreme Court Judges that follow the Constitution are a highly prized necessity and the more we conservatives can appoint, the better our nation will be served. Leave legislation to the legislators.


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