Democrats and abortion activists are gleefully cheering a vote Senate Democrats took today to abolish the filibuster. The immediate effect of the vote is that Senate Democrats can quickly approve pro-abortion nominees President Barack Obama has sent forward for lower courts.
But, are there unintended consequences?
One unintended consequence is that future sessions of the Senate, controlled by Republicans, could eliminate the filibuster for Supreme Court nominees and a nominee who could be the deciding vote to overturn Roe v. Wade could be confirmed. The Supreme Court is generally thought to be divided 5-4 in favor of Roe at this time.
Ed Whelan, writing at National Review, mulls over the possibility that Senate Democrats cooked their own goose.
“I will note, though, that I don’t see how Reid can abolish the filibuster vis-à-vis pending judicial nominees without setting a clear precedent that would enable a future Senate majority, in the very midst of a confirmation battle over a Supreme Court nominee, to abolish the filibuster with respect to that nominee,” he writes. “It would be funny indeed if folks on the Left who evidently rue Senate Democrats’ opportunistic decision in 2003 to inaugurate the filibuster as a weapon against judicial nominees were now to support an opportunistic rule change that would lay the foundation for making it much easier for a Republican president to appoint anti-Roe Supreme Court nominees.”
It’s for that very reason that abortion activists opposed the elimination of the filibuster when Republicans considered it years ago. As Roll Call reports:
The dilemma for groups like Planned Parenthood is clear: Back the nuclear option for victories on issues like birth control now, and you’ll increase the risk that a Republican president will be able to put hostile nominees on the bench in the future.
Planned Parenthood was among the liberal groups most active against the 2005 effort by the Senate’s Republican majority at the time to get President George W. Bush’s federal appellate nominees confirmed to the bench with simple majority votes — a point still clear on the organization’s website.
A May 2005 news release remains among the top Google search results for Planned Parenthood’s views on changing the Senate’s procedures with respect to judicial nominations with a simple majority vote. The release includes statements from Karen Pearl, the interim president of Planned Parenthood Federation of America in 2005.
“We are proud that our activists are telling their senators loud and clear that they oppose this attempt to silence minority voices,” Pearl said. “Supporters of the ‘nuclear option’ are only proving that they prefer intimidation and power politics to rational and honest debate, and America will suffer as a result.”
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Given weeks to respond, Planned Parenthood did not provide a comment for this report, but some Senate supporters of changing the chamber’s practice on judicial nominations have told CQ Roll Call they suspect that pro-choice groups are working behind the scenes against the effort.
The concern would be that once the rules are changed, a future GOP-led Senate would use the process to confirm judges openly hostile to the Supreme Court’s landmark Roe v. Wade decision that has guaranteed abortion rights.