By HRC President Joe Solmonese
As kids we all learned the old lesson that you can't change the rules in the middle of a game, no matter how difficult the game becomes. Some Senators seem to be forgetting that principle as they consider changing the more than 200-year tradition surrounding judicial nominations.
The Senate has confirmed more than 200 of President Bush's nominees since he took office. According to the Alliance for Justice, almost a quarter of all federal judges have been appointed by President Bush. And Democrats have filibustered only a handful of the most extreme appointments. But some Senators want to ensure that doesn't happen again.
Majority Leader Frist is leading the charge to eliminate filibustering on judicial nominations, an effort being called the "nuclear option" to acknowledge its severity and consequences for our government.
A procedure that delays votes through unlimited debate, the filibuster has been employed by Republicans and Democrats alike for more than two centuries to prevent ideological extremism. It allows the minority party to check the powers of the majority.
If the nuclear option is invoked, it would end the minority's ability to block extreme judicial nominees, like the fewer than 10 out of 200 nominees who are currently being blocked because of their dismal records on civil liberties.
Given that the U.S. Supreme Court will likely have several vacancies in the next four years, this situation is particularly dire. Tinkering with the rules raises the prospect of a radical change to the makeup of our nation's highest court, and thus a radical change in the state of law protecting gay, lesbian, bisexual and transgender Americans.
Particularly at risk are the basic rights that ensure fairness and equality for all Americans, rights that have historically been provided by the courts. After all, the judicial branch was established by the Framers of the Constitution so that it could protect against the "tyranny of the majority." Judges were also given lifetime appointments to ensure that they were insulated from electoral pressures when considering the rights of unpopular minorities. The opposition wants to keep lifetime appointments while taking away the power to dissent over a nominee.
Consider the effect this could have on the GLBT community. Lawrence v. Texas, the Supreme Court case that struck down the last remaining sodomy laws – laws that were used to brand GLBT people as criminals, was won by just one vote. Had there been no dissent on the nomination of Judge Robert Bork to the Supreme Court, he would have sat on the bench rather than Justice Kennedy. Justice Kennedy voted to overturn sodomy laws; in fact, he wrote the majority opinion. Judge Bork is an outspoken opponent of GLBT rights and has since testified before Congress in support of an amendment to the Constitution denying same-sex couples the right to marry.
Clearly, LGBT Americans have much to lose from a change in the filibuster rules and we should be active in opposing the nuclear option. While hard work will continue in state legislatures and the halls of Congress, there's no doubt that the judiciary provides our community with huge gains and protections.
This move to take away the filibuster is a blatant power grab and an unprincipled attempt to change longstanding rules. It has been denounced by fair-minded Democrats and Republicans alike, including Sens. Lincoln Chafee, Hillary Clinton, Harry Reid, John McCain and Olympia Snowe.
Now it's time for us to denounce it. Write or call your Senators and tell them that you oppose the nuclear option. Let them know that our society's highest aspirations – equality and justice, for instance – depend on a system of rules that are consistently applied. And remind them of that childhood lesson.
