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May 26, 2005, 1:00 P.M.

Republican Representative Spencer Bachus of Alabama recently railed against comedian Bill Maher for remarks that Maher made on his television program, Real Time With Bill Maher, on May 13. Maher, while discussing the fact that the Army missed its recruiting goals by 42% in April, joked that “more people joined the Michael Jackson fan club” than the Army during that time frame. Maher went on to say that recruiters had already “picked all the low lying Lynndie England fruit” and thus could no longer make their quotas.

Bachus has said that Maher’s statements are possibly treasonous and at least grounds for cancelling Maher’s show. Apparently, Mr. Bachus feels that (a) the first amendment does not apply to criticism of the military and its recruiting efforts; and (b) highlighting problems such as the abu Ghraib scandal in the reference to abu Ghraib poster girl, Lynndie England, somehow “undermines the effort or national security of our country.” Both of these points are of course ludicrous.

I certainly don’t like generalization and Maher, despite his protestations to the contrary, is clearly implying that many of the Army’s recruits are dumber than dirt. Certainly, some are (evidence Abu Ghraib) but most are not (evidence those who blew the whistle at Abu Ghraib) and they don’t deserve to be put in the same box. Mr. Maher is, however, a comedian and his statements, with appropriate qualifications and disclaimers simply wouldn’t be funny. His statement that “anyone who knows about my views and has watched my show knows that I have the highest regard for the men and women serving this country” is as dumb as Bachus calling his remarks treasonous. After all, Maher called them low lying fruit of the Lynndie England variety.

The fact is that recruiting is off and recruiters are having to be retrained because, in the fact of declining enlistments, they have filled their quotas with thousands of ineligible candidates, and there is a real recruitment crunch right now. Soldiers are doing extended tours in Afghanistan and Iraq with no end to those conflicts in sight. Americans are increasingly reticent to support those occupations with blood or treasure and the dropoff in qualified circuits is but another symptom of this growing disaffection. Another example, of course, is the decreasing number of reenlistments.

We simply don’t have a large enough Army to support a prolonged occupation of Iraq and Afghanistan. The fact that soldiers will be rotated back to these places and to other deployments around the world is certainly a deterrent to new enlistments and reenlistments. The Bush administration apparently does not recognize the folly of these occupations and therefore will eventually look to a draft for a solution. I suppose Rep. Bachus will see criticism of the draft as treason also.

May 26, 2005, 11:30 A.M.

The Other Nuclear Option: President Bush, when speaking about the recent move by Senate Republicans to end a Democratic filibuster and force a vote on judicial nominees, said "People ought to have a fair hearing and they ought to get an up or down vote on the floor." This sentiment echoes the position of past Presidents and other majority politicians when faced with opposition to their nominees on the Senate floor for decades. Bill Clinton used a similar line when expressing his frustration with the refusal of the Senate to approve his nominations as did Bush 41, Reagan and Carter. Neither the filibuster nor the complaints about its use to block nominees are anything new. It’s part of the political game, and the rules allow it.

The problem now is that the Republicans, until the recent 11th hour compromise, were prepared to once again change the rules to get what they want. The very tool used to block Clinton nominees is now threatened by Bill Frist’s willingness to blow up hundreds of years of tradition to assist Bush 43 in packing the federal courts with close-minded, right-wing, agenda-driven zealots.

Over the years it has been the use of the filibuster and other parliamentary procedures permitted by Senate rules that have blocked extreme judicial candidates put forth by both parties. Apparently, the Republicans are confident that there will never be a need for them to use these practices in the future because for the sake of a small group of appointees. The Republicans, at the urging of the President, are prepared to make the earth move.

Frist calls the filibuster ""the tyranny of the minority."" Democrats call it a necessary check to preserve the rights of the Senate minority. Either way, it still takes 60 votes to end a filibuster and the Republicans hope to change that to a simple majority. With a 55 –– 45 majority in the Senate, Republicans could suffer as many as 5 defections and still end a filibuster, with Vice President Cheney as a tie breaker. A small bipartisan group of 14 Senators have averted the so-called "nuclear option" by coming to an agreement on the Bush nominees and avoiding a vote to change Senate rules. All of this occurred while staff members were moving cots into the Senate to prepare for a long night of debate. Luckily, a last minute compromise has temporarily averted the nuclear blast, but the peace is tenuous.

My biggest concern in all of this is not that the filibuster exists, after all, who can forget Jimmy Stewart’s portrayal in "Mr. Smith Goes to Washington" or that it is used to block judicial nominees. My concern is with a party that calls itself conservative, but that uses its power to make rules to protect criminals in its ranks, to change rules with little regard for future consequences, and that will stop at nothing to maintain its own power. The protection of minority rights is an essential element of our system and there has always been an unspoken recognition that today’’s majority will one day be in the minority and thus the rules only get pushed so far. All of that sort of thinking seems to be out the window now, and only for the sake of a few extreme nominees.

There is nothing particularly egregious about the backlog of judicial appointments. Since coming to office, 87% of President Bush’s U.S. District Court nominees have been approved by the Senate. President Clinton had about 81% of his federal nominees approved. Bush 41 had about 77% of his U.S. District Court nominees approved. Prior to Bush 41, a generally higher percentage of judges were approved (Reagan and Carter each saw about 93% of their candidates approved.), but there were generally more middle-of-the-road appointees during that period of time and the series of bad Supreme Court nominees like Bork and Thomas really changed the complexion of the process. The current President is about on par with his predecessor in terms of appointments and approvals, despite what he would have us believe.

The job of the Senate is to offer "advice and consent" with regard to Presidential appointments to the federal courts. This requirement eliminates the possibility of the President packing the courts and tipping the balance of power against the legislature. The advice and consent requirement is essential to the maintenance of an independent judiciary. The way to end the filibuster is to appoint moderate, fair-minded judges regardless of party affiliation, not to change the rules so that each party can appoint judges they favor in an attempt to counterbalance the damage done by their predecessors.

It is the moderate judges that are routinely approved by both parties. These are not the appointments that draw media attention or filibusters. All that the Republicans have demonstrated is that, in addition to taking their ball and going home, they are prepared to nuke the field if they don’t get their way.

The recent compromise will result in some activist judges being put on the bench. The Republicans don’t consider them activist because their agendas seem in line with evangelicals and so-called neo-conservatives. These judges are activist in that they intend to inject their beliefs and their values into their decisions and in this way they are no less activist than the "liberal" judges blocked by the Republicans during the Clinton administration. The minority members of the Senate, along with some forward thinking Republicans, have averted a disaster. Now all they need to do is get Bill Frist’s twitchy little finger off the trigger before he does any real damage.

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