From ending filibusters to dividing recalcitrant courts and carving out legal exemptions, the judiciary is under assault in the name of the Lord

roposals on Capitol Hill to speed approval of President Bush's nominees to the federal judiciary system could alter the way Congress does business, and even threaten the constitutional balance of powers.

   Dubbed "the nuclear option" both by critics and supporters, the changes include making it easier to end filibusters (a practice where a minority of legislators hold up proceedings.) Even more radical are calls to divide obstreperous courts such as the U.S. Ninth Circuit Court of Appeals, and render select legislation enacted by congress having to do with religion essentially "off limits" to judicial scrutiny.

   Several factors are fueling the mostly-Republican orchestrated initiative.

    ¶       Supporters of the proposals claim that liberal Democrats are intent on stopping President Bush's court nominees at any cost, and despite losses in the November election. Critics point out, though, that the Senate confirmed more than 200 appointments to the federal judiciary in the first term of the Bush administration, and that troubling questions surround several "extreme" nominees such as Charles Pickering and Priscilla Owen.

   "Nevertheless, it's the (10) blocked nominations that peeve the Republicans," noted Associated Press writer Jesse J. Holland.

    ¶       Stoked by complaints from conservative Christians and fears of environmental, gay rights, separationist and other groups, nominees are increasingly "vetted" concerning their views on hot-button issues like abortion rights, school prayer and other First Amendment concerns. Questions about religious faith and its role in government policy also contribute to a growing divide when a number of names are suggested to fill vacancies on federal benches, and especially the U.S. Supreme Court (SCOTUS).

   "Republicans are loaded for bear, spoiling for a confrontation with Senate Democrats over judicial appointment," notes Norm Ornstein of the conservative American Enterprise Institute. "This has really become an issue that leaves them passionate."

   Memories of what Democrats did to SCOTUS nominees like Robert Bork (getting "Borked" has entered beltway parlance as a description of nominees being rejected after a fierce committee fight) now drive much of the agenda to change rules on Capitol Hill. Adding to the fracas is the likelihood that Mr. Bush could end up replacing two or even three aging or infirm justices on the high court. Religious conservatives see that as an opportunity to return the country to its "Christian roots" and even overturn rulings like ROE v. WADE or decisions restricting school prayer and Bible reading.

    ¶       Rulings by the Supreme Court and lower jurisdictions about the status of religion in public life have enraged politicized fundamentalist-evangelical Christians and led to charges of so-called "judicial activism." Former Alabama Supreme Court Justice Roy Moore, who placed an illegal monument of the Ten Commandments in the state's judicial building, has become a folk hero to many religious conservatives. Prominent evangelists like Christian Coalition founder Pat Robertson frequently echo Moore's warnings of "black robbed tyrants," and charges that court rulings banning unconstitutional religious practice threaten the nation's Christian heritage.

    ¶       The specter of out-of-control judges and "judicial activism" is proving to be an attractive rallying cry for politicians looking for contentious issues on which to further their careers. Leading the charge on Capitol Hill on behalf of the "nuclear option" is new Senate Majority Leader Bill Frist (R-Tenn.) who is already being mentioned as a potential GOP presidential candidate in 2008.

   "One way or another, the filibuster of judicial nominees must end," Frist blustered to a speech last month before the Federalist Society. "The Senate cannot allow the filibuster of circuit court nominees to continue, nor can we allow the filibuster to extend to potential Supreme Court nominees."

   Indeed, the use of the filibuster has been described as both a check on majoritarian power and, according to Frist, "nothing less than a formula for tyranny by the minority."

   Democrats have used the procedure to block some Bush administration judicial appointments. That means that 60 votes are required in the 100-member Senate to end a filibuster. Republicans held 51 Senate seats before the November election; they gained four, giving the chamber 55 Republicans, 44 Democrats and one independent. Democrats would thus require seven more votes to defeat any nomination.

   Much of the flap over "judicial tyranny" involves decisions by courts that have struck down unconstitutional religious practices, everything from coercive school prayer (beginning with a string of ruling in the early 1960s) to display of the Ten Commandments on government property. These rulings have outraged religious evangelicals, who insist that the First Amendment separation of church and state is a "myth," and that judges who rule against such practices are "making law."

   "It's a way of demonizing court decisions that don't go their way, and that protect the rights of Atheists and even religious minorities," argues American Atheists president Ellen Johnson.

   "They don't talk about 'tyranny' when government meddles in people's personal lives in the name of religion, though," Johnson added.

   Several other proposals have been advanced in an effort to stop any further secularization of the country.

    ¶       The U.S. Ninth Circuit remains a key target for conservatives and the religious right. The latter is outraged by a decision striking down recitation of the religionized version of the Pledge of Allegiance that includes the words "under God." California Atheist Michael Newdow had challenged the recitation, arguing that it violated the separation of church and state, and interfered with his right as a parent to oversee his daughter's education. The daughter, the center of a custody dispute between Dr. Newdow and the girl's mother, was forced to recite the Pledge in her public school classroom.

   The U.S. Ninth Circuit agreed, with a panel judge noting that the law approved by Congress in the 1950s to add "under God" to the Pledge of Allegiance violated the First Amendment and was an explicit statement on behalf of monotheistic religion.

   Disgusted with separationist and other rulings from the Circuit, several groups under the banner of Coalition for a Fair Judiciary have proposed dismantling the court and establish a new 12th and 13th District.

   "The Ninth Circuit seems to wield an awful lot of power, and it is the most reversed in the nation," Kelley Beaucar Vlahos of CFJ told Fox News last week. "There's some serious judicial activism going on there."

   Rep. Rick Renzi of Arizona said that the rulings from the Circuit were "contemptuous judgments" and "tear at the moral fabric of our nation, disregard the will of the people and force a corrupt ideology upon our society."

   The U.S. House of Representatives agreed, and in October passed a little-noticed amendment authored by Rep. Mike Simpson (R-Idaho) to the obscure Bankruptcy Judgeship Act that would dismantle the Ninth Circuit. The measured passed 105 to 194.

   According to critics, the amendment to dismantle the Ninth Circuit is a dangerous and unwarranted move.

   "It would be inappropriate to undertake such a momentous transformation of our nation's judicial system with little opportunity for debate and consideration," warned California Sen. Dianne Feinstein.

   Rep. Adam Schiff (D-Calif.) added that the effort to break up the court was "ideologically driven."

   Still another effort to undermine decisions that affirm the separation of church and state is the flurry of bills on Capitol Hill that seek "carve outs" from judicial scrutiny.

   Proposed legislation such as the Ten Commandments Defense Act would restrict any review by federal courts of practices that involve religion, such as display of the Decalogue, recitation of "under God" in the Pledge of Allegiance, even government grants to discriminatory groups like the Boy Scouts of America that denies admission to gays and Atheists.

   "These bills elevate religious practices above the U.S. Constitution and review by the federal courts," said American Atheists Ellen Johnson. "The representatives introducing these measures know that they are unconstitutional and would never pass legal muster, but these proposals cater to the demands of the extreme right, and mislead the public into thinking that our courts need to be 'reined in' or ignored."

   How likely are these measures to become law?

   Even with Republicans in control of both ends of the Hill and the party's extreme evangelical right wing ensconced firmly, even some conservatives are warning that "going nuclear" may not be a good thing.

   Veteran strategist Paul Weyrich says that he supports most of the "nuclear option" but cautions that changing Senate rules to restrict the filibuster option is "dangerous." Weyrich recalled the mid-to-late 1960s when there were only 33 GOP Senators trying to stop Lyndon Johnson's budget revolution known as "The Great Society."

   "The only weapon we had to stop this juggernaut was the filibuster ... the day may come again when we are down to that many Senators. They don't want to put themselves in the position where they can't stop the initiatives of a Democratic President if need be."

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