Fallout from 'nuclear option'

By John F. Kerry | May 24, 2005

THE REPUBLICAN leadership's ''nuclear option" would eliminate the filibuster and turn the Senate into a rubber stamp for even the most controversial of President Bush's judicial nominations. The arguments can seem obscure, but there will be consequences for all of us.

The Bush administration's new plan on mercury pollution, for example, illustrates the importance of maintaining a strong and independent judiciary. Mercury is a potent neurotoxin harmful to fetuses' and infants' nervous systems.

Frighteningly, one in six American women carries enough accumulated mercury to potentially harm her children. Mercury has been linked to developmental disabilities such as autism, and researchers suspect a connection with cardiovascular disease in adult men.

The Bush administration does not seem particularly concerned with the mercury threat and proposes rolling back current law and allowing more of this toxic chemical to stay in the environment. The administration's corporate-driven plan does too little, too late to protect our families and our communities. Their plan may also violate environmental and health laws.

Eleven state attorneys general, including Tom Reilly, recognize that mercury pollution presents a danger to the public health and have taken the only course of action available to stop the president's harmful plan: filing suit in federal court.

This is exactly why the federal courts exist and why an independent and fair-minded judiciary matters. Our courts are obligated to objectively review actions like the mercury plan to ensure consistency with federal law and our Constitution. The courts are a vital check on abuse of power from Washington. If the Republican leadership triggers its nuclear option, the administration will gain unprecedented power over the selection of federal judges and leave our democracy in a weaker position.

Imagine, for example, that the mercury challenge came before Janice Rogers Brown, who has been nominated to the very court set to hear the mercury case. Justice Brown has little faith in government's ability to do good, calling our government a ''leviathan" that is ''crushing everything in its path." She called New Deal programs such as Social Security ''the triumph of our own socialist revolution." Her legal views are hostile to bedrock laws that protect public health, workplace safety, and our environment.

Or consider what might happen when a critical environmental case comes before William Myers, another of Bush's controversial nominees. Myers called environmental laws ''outright, top-down coercion" and has criticized ''the fallacious belief that centralized government can promote environmentalism." Myers has repeatedly voiced his extreme opposition to almost any environmental protection based on an activist interpretation of the Constitution.

It's hard to see how Attorney General Reilly or any citizen concerned with mercury pollution would get a fair hearing before Myers or Justice Brown. Both seem ready to set precedent and fact aside to promote their personal political agenda.

The filibuster fight is more than a beltway battle. The very foundation of our government -- an effective system of checks and balances -- is at stake. Over 200 years ago James Madison warned us: ''The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." We must remember that warning, and remember that the greatest strength and virtue of our democracy is the protection it provides to the minority.

If the Republican leadership gets its way, America will lose the protection of a strong, independent judiciary for the first time in history. In 1937, President Roosevelt attempted a court-packing scheme to assert his influence on the courts. His own party said no. Thomas Jefferson once attempted to impeach a Supreme Court justice who disagreed with his political agenda. His own party said no. I hope some Republican senators look at history and find the courage to speak truth to power in defense of our democracy.

John F. Kerry is the junior senator from Massachusetts.