The View From Here . . .
By Bob Morgan, Jr.

Apart from the war against terror, it is entirely possible that the most important legacy of the second Bush Administration will involve judicial nominations.

The battle for the federal judiciary was already joined in the last Congress as a number of President Bush's nominations were subject to a filibuster, a maneuver under Senate Rule 22 to require 60 votes before debate is ended and a pending matter is brought to a vote. Republicans, who only had 51 members, often failed to end debate and many of the disputed nominees were not confirmed. Significantly, filibusters against judicial nominees were quite rare until the last Congress and the tactic of using the filibuster to block large numbers of potential judges in the same session was unprecedented.

The stakes have obviously risen this year. There is a good chance of one or more Supreme Court openings in the next few years. Chief Justice William Rehnquist, who is 80 years old, unfortunately has contracted thyroid cancer and his future is uncertain. In addition, many other justices are at advanced ages. John Paul Stevens is 84, Sandra Day O'Connor is 74 and Ruth Bader Ginsburg is 71. In addition, there are currently 15 vacancies in the circuit court of appeals, the courts immediately below the Supreme Court.

And, of course, the stakes continue to be high ideologically. Roe v. Wade, the most controversial judicial decision of the last 100 years, possibly hangs in the balance, since two more conservative votes on the Supreme Court would likely overturn the decision and return abortion policy to the states. And there are numerous other important areas before the Court, like affirmative action, church and state issues, criminal procedure and tort reform.

Republicans, having gained four new Senate seats, are apparently giving serious consideration to ending the filibuster rule as it applies to judicial nominations. . While Rule 22 requires a two-thirds vote to be amended, the strategy would be for Vice President Cheney, under the constitution the Senate's presiding officer, to rule that one Congress cannot bind another Congress and each new Congress can decide its filibuster rule by majority vote. Mr. Cheney's parliamentary ruling would doubtless be appealed, but it would likely be upheld by majority vote. Alternatively, Mr. Cheney could rule that the filibustering of judicial nominations is unconstitutional since it conflicts with the Senate's constitutional responsibility to "advise and consent" on nominations.

There is considerable justification for attempting to restore majority rule to the judicial nomination process by ending Senate filibusters. Of course, however, ending nomination filibusters, which has been described by some as the "nuclear option", will obviously be highly controversial and will no doubt lead to allegations of an impending takeover of the judiciary by rightwing extremists.

While President Bush and the Republicans have been given a historic opportunity to reshape the judiciary, it is important that they do it both with finesse and a sense of responsibility. Mr. Bush will be derailed, and properly so, if he insists on sending up a series of ideologically rigid nominees. Also, one has to question the wisdom of the attempt by some conservatives to prevent Senator Arlen Specter from chairing the judiciary committee. This would seem to be one battle too many in a highly charged situation. Although something of a liberal, Senator Specter has stated that he will not attempt to derail the president's nominees and he should be taken at his word.

If, but only if, Mr. Bush and allies use good judgment, the American judiciary will undergo considerable transformation in the next four years.