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The Next Chief Justice

by John F. Tamburo, Editor in Chief, Publisher
Originally Posted: 11/8/2004

Chief Justice William Rehnquist is obviously gravely ill.  My heart and prayers go out to the man.  His illness, thyroid cancer, hits home.  My grandfather died of the disease, and my wife survived it.  Whem I heard that he is getting radiation and chemo, I realized the situation is grave.  God forbid, he may not survive.  Even if he does, he may have to retire from the bench.  He is 80 years old; that is awfully old to be on radiation and chemo.

"Conservativity hereby reiterates its support for the promotion of Clarence Thomas to be our next Chief Justice."

In the sad event that the Chief is the first justice to retire, I hereby reiterate our October 25, 2004 position, which has since been adopted by Rush, Hannity and apparently even our beloved President.  Conservativity hereby reiterates its support for the promotion of Clarence Thomas to be our next Chief Justice.  I will furthermore elaborate and suggest, as previously done on Oct. 25, that Miguel Estrada be appointed as an associate justice to bring the court back up to nine members. 

I fully expect to see Justice Stevens retire in 2005, and I respectfully reiterate that Appellate Judge Frank Easterbrook of the 7th Circuit) should be nominated to replace Justice Stevens.  I expect Justice Ginsburg to retire, and suggest that Judge Carolyn Kuhl replace her, and Sen. Orrin Hatch of Utah ought to replace Justice O’Connor if she retires.

"Of course, this will in all likelihood trigger a filibuster from desperate left-wingers as they dig their fingernails in to attempt to save their last hope of power -- ramrodding their near-totalitarian vision of America down the throats of the people via the judiciary.  Our answer should be immediate, short, sweet and simple:  The Nuclear Option."

Of course, this will in all likelihood trigger a filibuster from desperate left-wingers as they dig their fingernails in to attempt to save their last hope of power -- ramrodding their near-totalitarian vision of America down the throats of the people via the judiciary.  Our answer should be immediate, short, sweet and simple:  The Nuclear Option.  The Nuclear Option, first used in 1975 by Democrats who wanted to reduce the number of votes from two thirds (67) to three fifths (60) to kill a filibuster.  In this scenario, the majority raises a point of order to object to filibuster on the grounds that it is not Constitutionally permitted for judicial nominees.  The chair, probably the Vice President, sustains the point of order.  This will of course draw an immediate objection from the minority.  Then a non-debatable motion to table the objection is made and passed on a simple majority.  Nuke exploded.  From that moment forward, it is impossible to filibuster a judicial nominee, ever again.

This has the risk of "nuclear winter," where the minority filibusters every single other bill in the Senate in revenge.  However, the majority can then drop the "thermonuclear option."  During filibuster the point of order is made that Senate Rule XXII, the filibuster rule, was not adopted by this congress, and Senate Rule V is unconstitutional and illegal since it purports to bind future congresses with the action of older ones, using the illusion of the Senate as a continuous body.  Chair rules again to sustain the point of order.  Objection.  Tabled by a simple majority.  The filibuster is dead for all manner of legislation forever.  The GOP may be afraid to delete a time honored way for the minority to choke up the majority.  They should be bold and proceed.

"The people have spoken, loudly, against the kind of obstructionism that the filibuster represents."

The people have spoken, loudly, against the kind of obstructionism that the filibuster represents.  The days of honor, when the filibuster was used rarely and not for partisan purposes, but rather to prevent egregious violations of decency or common sense, are gone, as the Democrats have proven.  The Democrats have pointed their nuclear arsenal at us and used it 29 years ago, in order to muscle past the GOP.  It is now time for the GOP to finish the job that Ted Kennedy and his ilk started in 1975.  It is long past time to whip out the nuclear arsenal and destroy the filibuster.

Then, after the explosion(s) the question of judgeships would be one of 51 votes, in precise comportment with the Constitution.  That question is much more easily answered, even with the moderate Northeastern faction of GOP senators to deal with.  In my opinion, we’ll see all of this, maybe as soon as Valentine’s Day.  Senator Frist, please deploy your red button, now.  If you are uneasy, don’t press it as soon as you produce it; give the minority a chance to see that you are completely ready to use the nuclear and/or thermonuclear options if you need, but you hope that you are able to refrain from doing so.  It may be, with a little friendly persuasion, that the mere threat of the nuclear arsenal will be sufficient to stave off its use.  But in the event that diplomacy fails, the use it without regret or delay.

Good luck to our ailing Chief Justice Rehnquist, our prayers go with you for recovery and long life.