With Supreme Court Justice Sandra Day O’Connor’s resignation, Senators on both sides have begun to discuss the potential impact of the so-called “nuclear option” and the deal that took it off the table in May. The deal struck by seven Democratic and seven Republican Senators preserved the use of the filibuster to block judicial nominees in “extraordinary circumstances,” the definition of which was left up to each of the 14 Senators. At the time, Eleanor Smeal, president of the Feminist Majority, asked the question, “Will saving women’s lives, women’s rights, and civil rights be considered such an extraordinary circumstance?”
Now Senators disagree about what constitutes “extraordinary circumstances.” Senator Lindsey Graham (R-SC), one of the signers of the deal to avoid the nuclear option, said on FOX News Sunday that to him, ideology would not be considered an extraordinary circumstance – rather, such a circumstance would have to be “a character problem, an ethics problem, some allegation about the qualifications of the personÉ” Senator Ben Nelson (D-NE), another member of the deal, agreed through a spokesperson that “ideology is not an ‘extraordinary circumstance’ unless you get to the extreme of either side,” according to the Washington Post. Senator Mary Landrieu (D-LA) believes that “a pattern of irresponsible judgment, where decisions are based on ideology rather than the law, could potentially be ‘extraordinary’,” according to a spokesperson’s interview with the Post. Senator Joseph Lieberman (D-CT), on the other hand, told the Post, “In my mind, extraordinary circumstances would include not only extraordinary personal behavior but also extraordinary ideological positions.”
Under the terms of the deal to avoid the nuclear option, three of the worst far-right Circuit Court of Appeals nominees who had been blocked by Senate Democrats were allowed simple majority votes. On FOX News Sunday, Senator Mitch McConnell (R-KY) said that this means that those three judges, and judges like them, do not constitute extraordinary circumstances. Senator Joseph Biden (D-DE), a key member of the Senate Judiciary Committee, said on CBS News’ Face the Nation that the Supreme Court is a “totally different ball game” than the appellate courts. He said that a nominee like Janice Rogers Brown, who was confirmed under the nuclear option deal to serve on the DC Circuit Court of Appeals, would “probably be filibustered.” Rogers Brown has been widely mentioned in the press as a potential nominee to fill the Supreme Court vacancy. She is a supporter of the constitution in exile, questioning the constitutionality of Social Security and most New Deal programs to regulate big business.