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February 11, 2016

Abortion Dilemma in ‘Nuclear Option’ Debate

Pearl opposed the "nuclear option" as Planned Parenthood's interim president in 2005. (Scott J. Ferrell/CQ Roll Call File Photo)

Pearl opposed the “nuclear option” as Planned Parenthood’s interim president in 2005. (Scott J. Ferrell/CQ Roll Call File Photo)

Updated 6:24 p.m. | Outside advocates of abortion rights have largely steered clear of public involvement in the latest round of ratcheting up of “nuclear option” talk in the Senate, and there might be good reason for that.

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.”

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.

The 2005 Planned Parenthood release criticized the Bush nominations of Janice Rogers Brown and Priscilla Owen. Both were confirmed to federal appeals court vacancies as a result of the “gang of 14″ deal that averted the use of the nuclear option in exchange for a number of senators agreeing not to filibuster judicial nominees except under “extraordinary circumstances.”

Brown’s name resurfaced in the nuclear option conversation in recent weeks because of a Nov. 1 opinion she authored against the contraceptive mandate contained in the health care overhaul law.

Senators and liberal observers who believe that the time has come to change the cloture rule for judicial nominations say that the decision by Brown and others like it underscore that Obama needs to be able to get more of his nominees confirmed, notwithstanding Republican threats about future conservative judges, like those of Judiciary ranking member Charles E. Grassley of Iowa.

“If the Democrats are bent on changing the rules. Go ahead. There are a lot more Scalias and Thomases out there we’d love to put on the bench,” Grassley said.

One Senate Democratic aide said Republicans have already blocked three women for the D.C. Circuit alone — Caitlin Halligan, Patricia Ann Millett and Nina Pillard. “Earlier this month we saw the DC Circuit Court rule that CEOs should be able to deny workers birth control coverage based on their own personal beliefs. It is clear that if we do nothing, our courts will continue to threaten women’s access to health care,” the aide said.

The D.C. Circuit Court of Appeals is viewed by many as the most important court short of the Supreme Court itself. All three female nominees faced procedural blockades because of Republican filibusters.

Democratic supporters of the effort to change the rules, led by Jeff Merkley of Oregon and Tom Udall of New Mexico, were quick to respond to the vote to block the Pillard nomination.

And Sen. Elizabeth Warren, D-Mass., responded to the votes in a floor speech last week, arguing that Republicans were seeking to nullify the outcome of the 2012 presidential election when it comes to Obama’s power to nominate judges.

“If Republicans continue to filibuster these highly qualified nominees for no reason other than to nullify the president’s constitutional authority, then senators not only have a right to change the filibuster rules — senators have a duty to change the filibuster rules. We cannot turn our backs on the Constitution. We cannot abdicate our oath of office,” Warren said. “We have a responsibility to protect and defend our democracy, and that includes protecting the neutrality of our courts — and preserving the constitutional power of the president to nominate highly qualified people to court vacancies.”

With Democrats failing to break a filibuster on the nomination of Robert L. Wilkins to the last seat on that same court Monday evening on a 53-38 vote, decision time looms for Majority Leader Harry Reid, D-Nev., and his caucus.

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