I say nuclear, you say nucular: Let's call the whole thing off!

So the filibuster battle begins. More to the point, the battle over Bush's more extreme judicial nominees begins. The Democrats threaten to filibuster, the Republicans threaten to go nuclear, and the Democrats may shut down the Senate. Senate Majority Leader Bill Frist argues that Bush's nominees "deserve an up-or-down vote on [the] floor," meaning a simple majority vote that his party would win, and that Democrats are engaging in "unprecedented" obstructionism. Meanwhile, Senate Judiciary Committee Chairman Arlen Specter claims that this obstructionism is revenge for Republican opposition to some of Clinton's more objectionable nominees -- though he at least has the good sense to blame both parties for the filibuster escalation of the past two decades.

But let's consider the facts, not the spurious claims someone like Frist (who had the gall to diagnose Terri Schiavo by video and who is now more insanely partisan than ever): The Democrats have only filibustered ten of Bush's 229 judicial nominees. Of those ten, seven have been renominated. That means that 219 of Bush's nominees were acceptable enough to Democrats that they declined to filibuster -- meaning that they essentially permitted 219 of Bush's 229 nominees to be confirmed. Surely Democrats didn't like all 219 of those nominees -- most of them, now confirmed federal judges, are well to the right of most Democrats -- but they did not block them through parliamentary procedure. So despite Frist's exaggerated rhetoric, backed up by many in his caucus, this is all about a small majority of Bush's nominees. Which means that something must distinguish those ten -- now seven -- from the rest. It can't be judicial conservatism -- most of them are conservative, which is why Bush nominated them in the first place. No, what distinguishes these seven, the Odious Seven, is their extremism. Republicans are trying to turn the filibuster battle into a debate over procedure, deftly labelling Democrats as obstructionists, but what matters here are the nominees themselves. Democrats can stand up and defend the filibuster, even if it was once used by segregationists to block civil rights legislation, but they should be focusing their attention, not to mention the attention of the media, on the nominees themselves. (See a previous post here.)

One of those nominees is Priscilla Owen, a justice on the Texas Supreme Court. What makes her so extreme that Democrats would filibuster her nomination? For more on this, see this 2002 piece by Jason Zengerle in The New Republic. Essentially, Owen is "an anti-abortion zealot" whose views place her on the far right of the already right-wing Texas Supreme Court (the nine justices are all Republicans), and it seems that she has been nominated precisely because of her anti-abortion zealotry. Of course, most of Bush's nominees are pro-life, which means that Democrats have already acquiesced to the confirmation of pro-life nominees, but Owen's extremism sets her apart. Indeed, Zengerle notes that "her anti-abortion fervor distinguished her from even her conservative colleagues," often in parental-notification cases where she was the lone dissenter. In one such case, Attorney General Alberto Gonzales, then White House counsel, referred to her position as an "unconscionable act of judicial activism".

(Don't Republicans and conservatives claim to be against judicial activism? Isn't that one of Frist's causes these days, kissing up to the evangelical right? Well, it seems to be allowed when it's activism by the right, of the right, and for the right. Can you say... hypocrisy?)

The other six nominees are very much like Owen, which is why they, too, may soon face the filibuster -- or pass through the nuclear winter that could soon envelop the Senate. Right now, the debate is about the filibuster, and I'm sure the Republicans want to keep it that way. But the Democrats need to expose these nominees for what they are and to face the Republicans on the battlefield of ideas. Yes, they should filibuster. Yes, they should defend the filibuster. But, in the end, the votes will come down to the nominees themselves. Years from now, when they're sitting on the federal benches, the matter of how they were confirmed will be far less important than the damage they've done to America's institutions, public and private, through their right-wing activism. They need to be blocked. If that ultimately fails, Democrats need to take their case to the American people, who may just reject the encroaching extremism of the Republican Party.