Will the Senate Go Nuclear? More Workers’ Voices Needed

Filibuster. Cloture. Nuclear option. They sound like words that only political junkies can fully explain, but right now, they’re words that every worker in America needs to know and understand. What happens in Congress during the next few weeks could permanently alter the balance of power in this country, not only between our various branches of government, but between employer and employee — and not in the employee’s favor.

Since President Bush took office in 2001, there have been a number of battles in Congress over the individuals he has nominated to become federal judges. Most of these battles have thus far resulted in those individuals being confirmed: the Senate has confirmed 204 of his nominees, while blocking only 10 nominees. The vacancy rate on the federal courts stands at its lowest rate in 14 years. (See IndependentJudiciary.com.) Most of the battles over those nominees not yet confirmed have been based upon the records of those nominees, and the belief that they will issue out-of-the mainstream, right-wing activist rulings (although a few have been in protest of the treatment of nominees during the Clinton administration, where a number of nominees were bottled up in the Senate Judiciary Committee, rather than being submitted to the entire Senate for approval.) (See MSNBC article.)

While it was expected that the pace of nominees receiving Senate approval would slow in 2004, on account of it being an election year, once President Bush was successfully reelected, there was an expectation that even controversial nominees would start to move forward again. Several nominees that did not receive approval in the last session of Congress have been renominated, which brings us to the filibuster. The filibuster is a time-honored Senate tradition which allows a political minority to prevent action on legislation or a nomination for an executive branch position or a federal judgeship. While a minority of one can use the filibuster to continue debate and prevent a vote, Senate rules require 60 votes to invoke “cloture,” which means to end debate and allow a vote to proceed. (See About the Filibuster and the Nuclear Option.)

On nominees about which the Democratic party was mostly unified, this meant, in the last Congress where Republicans had only a 51-49 majority, that Democrats could successfully filibuster most controversial nominees. After the November 2004 election, Republicans gained enough seats that they now hold a 55-45 majority, but there are still nominees about which the Democratic caucus is unified enough to prevent those nominations from being successfully confirmed on the Senate floor. Because Senate Democrats have been successful at preventing the nomination of the most controversial and extreme nominees — the ones most prized by the Right — Republican frustration led to talk of what has become known as the “nuclear option.”

The nuclear option, called that because of the havoc it would wreak with the way the Senate has done business for two hundred years, entails changing the rules of the Senate to allow nominations to proceed with a simple majority vote. (See The Nuclear Option — Step By Step.) Instead of the 60 votes needed to invoke cloture and end a filibuster, a nomination could proceed with a simple majority vote. As the Senate currently stands, this would not even require that Republicans unanimously support a nominee, as only 50 of 55 Republican senators could vote in favor of a particular nominee, and Vice President Dick Cheney could cast a tie-breaking vote. (See Fact versus Myth: The Truth About the Nuclear Option.)

So after a little bit of “Judicial Nomination Process 101,” you may be asking what all this has to do with workers. First, here are just a few reasons why judicial nominees are important:

  • Judges make many decisions that can affect whether you, your loved ones, or your coworkers are able to obtain justice if you have to go to court some day to enforce your legal rights.
  • Judges’ legal interpretations may even affect how your boss treats you: if legal violations go unpunished, your employer could be less likely to treat you fairly and follow the law.
  • Many judges are intelligent, fair, and follow the law, but some judges are swayed by their own personal or political views, producing decisions that ignore or contradict existing law or the intent of those who created the law.
  • What’s more, judges in federal court have “lifetime tenure.” They are not subject to re-election, reappointment, or recall for the rest of their lives. The only time that the American public can influence the process is at the beginning, when a federal judge is first nominated. Once a bad or biased judge is confirmed, there’s little more that can be done.

(See WF’s “Fair Judges” page.) So any process which makes it easier for bad nominees with anti-worker records to be confirmed is one that workers have a stake in opposing. Our allied organization, NELA, has joined many progressive coalition partners in opposing the nuclear option and the filibustered nominees who may trigger its application, as part of its process of “advocat[ing] for an impartial judiciary that does not place the interests of employers over the rights of employees.” (See NELA Judicial Nominations page)

But even more importantly, there is no reason to think that once the filibuster is eliminated for nominees, that it will not be eliminated for other legislative issues as well. One recent commentary showed how Republicans, despite a Democratic president and Democratic congressional majority in 1993, were able to use the filibuster to kill the Workplace Fairness Act, which would have dramatically strengthened unions and the ability to organize collectively.

This bill was everything Democrats dreamed of, and all that Republicans loathed. It was a sop to organized labor, giving workers the right to strike without fear of being permanently replaced. It held out the possibility of greatly strengthening labor’s hand and perhaps reversing its decline within private-sector workplaces.

In the labor vs. capital equation, the GOP believed at its core that the way to strengthen the economy was to tip the balance in favor of Capital, aka, employers. Moreover, the Workplace Fairness Act would add considerable muscle to the Democratic base.

On June 15, 1993, it passed the U.S. House 239-190. In the Senate, 53 of the 100 senators favored it. But it didn’t become law because Senate rules said it took 60 votes to end debate and force a final vote on the bill. The Workplace Fairness Act died, and Labor’s long, slow decline has continued, much to the delight of the GOP.

(See Portland Press-Herald op-ed.) If this is what happened with the filibuster in place, what do workers think will happen without it? As it now stands, there is a way to stop the most extreme legislation from becoming law, and the most extreme nominees from interpreting the law. While we, of course, do not think bills like the Workplace Fairness Act are extreme, we recognize that it also paved the way for bipartisan support of more moderate measures passed during that same time period, such as the Family & Medical Leave Act.

The move to invoke the nuclear option is already in process, starting with the reinvigorated nominations of Priscilla Owen and Janice Rogers Brown, who were approved last week by the Senate Judiciary Committee. (See CNN.com article.) It is not yet clear whether the Senate Republican leadership has enough votes to invoke the nuclear option, but there will be extreme pressure placed on moderate Republicans who might break ranks with their colleagues, especially by religious conservatives energized by abortion and other key issues. (See Reuters article.)

If the American worker does not join with other progressives to defend the filibuster, our federal courts are going to continue their march to the extreme right. Workers’ voices are going to have to be extremely loud, to drown out the other voices pressuring the Senate to “go nuclear.” It is extremely important that everyone let their Senators know now that the nuclear option is a completely unacceptable way to resolve the current impasse over judicial nominations. Otherwise, workers’ rights will be one of the many casualties our democracy will experience.

More Information:

Workplace Fairness: Save Workers from Extremist Judges: Say NO to the Nuclear Option
See also: Fair Judges page; Take Action page

National Employment Lawyers Association:
The National Employment Lawyers Association Acts on “Nuclear Option”
See also: Judicial Nominations page; Take Action page

Alliance for Justice: IndependentJudiciary.com; SavePhil.com
American Constitution Society: Judicial Nominations
: Judging the Environment: What’s New?; Anti-Nuke Editorials
People for the American Way: Independent Judiciary; Filibuster Action Center

New blog on nominations: Judging the Future

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.