Family Research Council
March 23, 2005


Most Americans assume that a judge simply applies the law as written
(sometimes referred to as "strict constructionism" or "originalism" or
"judicial restraint"). However, modern judicial activism has threatened
the constitutional form of representative democracy as conceived by the
Founding Fathers. Under this conception, elected representatives have the
power to make the laws and the people have the power to confirm or reverse
those laws every time they go to the ballot box. This kind of judicial
philosophy, of course, would uphold pro-life laws and would likely be
disposed to overrule Roe v. Wade.

Political Landscape

The appointment of activist judges is the most powerful tool liberals
have. Without activist judges on the bench most of the liberal agenda
would not find its way into American law or culture. Throughout the first
term of President Bush, Senate Democrats obstructed known conservatives,
especially those considered potential Supreme Court nominees. Liberals can
filibuster by refusing to vote for cloture, which only takes forty
Senators to block. It is likely that the battle over Supreme Court
nominations will be the political line drawn by the Democrats. They will
likely risk the obstructionist label in order to block any non-activist
Justice. The Judiciary Committee is now under the chairmanship of Arlen
Specter (R-PA) who has hinted at a pro-abortion litmus test. Because of
his statements immediately following the election he has been forced to
make concessions that might strengthen the ability of the President to
nominate a judge who advocates "originalism" for the bench.

Procedural Options

If the Democrats do not allow the Senate to invoke cloture and,
consequently, block a nominee's vote before the full Senate, Republicans
have limited options. One would be for a rule change that would
incrementally decrease the number needed for cloture from 60 to 51. The
other option, sometimes referred to the "constitutional option" or the
"nuclear option," would call for a ruling from the chair, at which point
the Senate president or president pro tempore (Dick Cheney and Ted
Stevens, respectively) would rule the filibuster unconstitutional and move
directly to a vote decided by simple majority. If Republicans pursue this
option some Democrats would cry foul and threaten to shut down any other
Senate business.