THE FAMILY FOUNDATION

Like the proverbial frog in ever-increasing hot water, the American people find themselves in a constitutional crisis. In fact, it’s a double constitutional crisis. The good news is the solution could be just weeks away.

To explain, the first crisis, which is more commonly recognized, is that of judicial activism, where more and more activist judges have been overstepping their authority by legislating from the bench, rather than interpreting the law with constitutional guidance. As this has happened, Americans have become a people living under the rule of judges and their interpretations, rather than a people living under the rule of law.

This crisis has been precipitated by the appointment of judges who view the Constitution as a living, breathing and *changing* document according to the will of the judge. An example is the 2003 *Lawrence v. Texas* decision, where the U.S. Supreme Court declared that a popularly held, moral disapproval of a certain action was insufficient grounds for a government prohibition of the action. Thus, sodomy laws were ruled unconstitutional in many different states with one simple decision.

The "mother of all judicial activism cases" was the infamous *Roe v. Wade* decision of 1973, where the Supreme Court declared abortion laws in all 50 states unconstitutional because of the newfound "right" to terminate a pregnancy derived from a concept called "privacy." There was no legislation from Congress or from any state’s Assembly – just judicial fiat.

The solution to this crisis that has been "warming the water" for more than three decades is the appointment of "strict constructionists" to the federal judiciary who limit their judicial authority to the interpretation of the Constitution or laws enacted by legislatures. That is the course that President Bush seems to be pursuing with his nominations.

The second constitutional crisis has been generated by senators who oppose srict constitutional interpretation. Those favoring a woman’s right to choose, same-sex marriage and broad powers of free expression prefer judges who expand on the Constitution. They desire to block judges that are strict constructionists.

Therein lies the second crisis, for in blocking the votes on the President’s judicial nominations, they use a legislative weapon called the "filibuster." The filibuster is a tool used by the minority party that requires 60 of the 100 votes in the Senate to stop. It basically is an open-ended debate that never comes to a vote until 60 senators agree to end it. On legislative matters, this gives influence to the minority party, which may control more than 40 of the 100 votes, rendering the filibuster unstoppable.

The second constitutional problem arises in the fact that the U.S. Constitution requires the Senate to fulfill its duty of "advice and consent" on the President’s nominations – not block or filibuster them. That brings us to the "constitutional option" that Republican senators are considering at this time.

The constitutional option, so named because it facilitates the constitutional intent for the Senate to vote on nominations, would be a change in the Senate rules regarding the filibuster. It only takes a simple majority – 51 senators – to change Senate rules, which Republicans are considering in order to preclude the act of filibustering from judicial nominations. This constitutional option is also called the "nuclear option" because liberals in the Senate have said they will "shut down" all legislative action within the Senate if the filibuster is tampered with.

The timing on the brewing confrontation appears to be, and should be, imminent. With several justices on the Supreme Court considering retirement and especially with Chief Justice Rehnquist’s health in question, the procedure for confirming federal judges should be cleared as soon as possible. No one in their right mind would desire to have the battle for a Supreme Court Justice nomination raised at the same time that the battle for the procedure – the filibuster – must be resolved. Many observers conclude that the time is now to pursue the constitutional option and resolve the filibuster debate while simple federal judge nominations are before the Senate.

Starting in late March and early April many believe that this will become the most important debate in 2005 in the U.S. Senate. It will resolve ultimately whether President Bush will be allowed to shape the Supreme Court, perhaps the most important issue that determined his re-election in 2004.

ACTION:

*The U.S. Senate MAY not vote on the President’s nominations.*

Therefore, call Kentucky’s two Senators and ask that they act *NOW* to stop the filibuster.

*Sen. Mitch McConnell*

Washington Office (202) 224-2541

*KY Offices:* Paducah (270) 442-4554

Bowling Green (270) 781-1673

Louisville (502) 582-6304

Fort Wright (859) 578-0188

London (859) 864-2026

Lexington (859) 224-8286

For email go to: www.mcconnell.senate.gov

*Sen. Jim Bunning*

Washington Office (202) 224-4343

*KY Offices:* Hopkinsville (270) 885-1212

Owensboro (270) 689-9085

Louisville (502) 582-5341

Fort Wright (859) 341-2602

Hazard (606) 435-2390

Lexington (859) 219-2239

For email go to: www.bunning.senate.gov
Key Family Foundation Contacts: Kent Ostrander , Executive Director Martin Cothran , Senior Associate Policy Analyst

Like the proverbial frog in ever-increasing hot water, the American people find themselves in a constitutional crisis. In fact, it’s a double constitutional crisis. The good news is the solution could be just weeks away.

To explain, the first crisis, which is more commonly recognized, is that of judicial activism, where more and more activist judges have been overstepping their authority by legislating from the bench, rather than interpreting the law with constitutional guidance. As this has happened, Americans have become a people living under the rule of judges and their interpretations, rather than a people living under the rule of law.

This crisis has been precipitated by the appointment of judges who view the Constitution as a living, breathing and changing document according to the will of the judge. An example is the 2003 Lawrence v. Texas decision, where the U.S. Supreme Court declared that a popularly held, moral disapproval of a certain action was insufficient grounds for a government prohibition of the action. Thus, sodomy laws were ruled unconstitutional in many different states with one simple decision.

The "mother of all judicial activism cases" was the infamous Roe v. Wade decision of 1973, where the Supreme Court declared abortion laws in all 50 states unconstitutional because of the newfound "right" to terminate a pregnancy derived from a concept called "privacy." There was no legislation from Congress or from any state’s Assembly – just judicial fiat.

The solution to this crisis that has been "warming the water" for more than three decades is the appointment of "strict constructionists" to the federal judiciary who limit their judicial authority to the interpretation of the Constitution or laws enacted by legislatures. That is the course that President Bush seems to be pursuing with his nominations.

The second constitutional crisis has been generated by senators who oppose srict constitutional interpretation. Those favoring a woman’s right to choose, same-sex marriage and broad powers of free expression prefer judges who expand on the Constitution. They desire to block judges that are strict constructionists.

Therein lies the second crisis, for in blocking the votes on the President’s judicial nominations, they use a legislative weapon called the "filibuster." The filibuster is a tool used by the minority party that requires 60 of the 100 votes in the Senate to stop. It basically is an open-ended debate that never comes to a vote until 60 senators agree to end it. On legislative matters, this gives influence to the minority party, which may control more than 40 of the 100 votes, rendering the filibuster unstoppable.

The second constitutional problem arises in the fact that the U.S. Constitution requires the Senate to fulfill its duty of "advice and consent" on the President’s nominations – not block or filibuster them. That brings us to the "constitutional option" that Republican senators are considering at this time.

The constitutional option, so named because it facilitates the constitutional intent for the Senate to vote on nominations, would be a change in the Senate rules regarding the filibuster. It only takes a simple majority – 51 senators – to change Senate rules, which Republicans are considering in order to preclude the act of filibustering from judicial nominations. This constitutional option is also called the "nuclear option" because liberals in the Senate have said they will "shut down" all legislative action within the Senate if the filibuster is tampered with.

The timing on the brewing confrontation appears to be, and should be, imminent. With several justices on the Supreme Court considering retirement and especially with Chief Justice Rehnquist’s health in question, the procedure for confirming federal judges should be cleared as soon as possible. No one in their right mind would desire to have the battle for a Supreme Court Justice nomination raised at the same time that the battle for the procedure – the filibuster – must be resolved. Many observers conclude that the time is now to pursue the constitutional option and resolve the filibuster debate while simple federal judge nominations are before the Senate.

Starting in late March and early April many believe that this will become the most important debate in 2005 in the U.S. Senate. It will resolve ultimately whether President Bush will be allowed to shape the Supreme Court, perhaps the most important issue that determined his re-election in 2004.

ACTION:

The U.S. Senate MAY not vote on the President’s nominations.

Therefore, call Kentucky’s two Senators and ask that they act NOW to stop the filibuster.

Sen. Mitch McConnell

Washington Office (202) 224-2541

KY Offices: Paducah (270) 442-4554

Bowling Green (270) 781-1673

Louisville (502) 582-6304

Fort Wright (859) 578-0188

London (859) 864-2026

Lexington (859) 224-8286

For email go to: www.mcconnell.senate.gov

Sen. Jim Bunning

Washington Office (202) 224-4343

KY Offices: Hopkinsville (270) 885-1212

Owensboro (270) 689-9085

Louisville (502) 582-5341

Fort Wright (859) 341-2602

Hazard (606) 435-2390

Lexington (859) 219-2239

For email go to: www.bunning.senate.gov