That generated speculation that, when the new Senate convenes on Jan. 4, the Republican leadership will propose a rules change. Reid, the Senate's reigning master of parliamentary tactics, has promised to "screw things up" by bringing the chamber's activities to a standstill. Frist would only tell me he wants "a full set of options, ready and available." However, Senate sources believe Frist will bide his time on opening day and wait to make a point of order to change the rules.
This is precisely what Byrd did as majority leader, as explained in an article by Martin Gold and Dimple Gupta to be published in the January issue of the Harvard Journal on Law and Public Policy. They wrote that Byrd "developed four precedents that allowed a simple majority to change Senate procedures governing debate without altering the text of any standing rule." In each case, Byrd successfully overcame dilatory tactics by the Republican minority.
It remains an open question whether Frist can mobilize Republicans as effectively as Byrd commanded Democrats to get even 51 votes. The "New England Three" of liberal Republican senators from Maine and Rhode Island may vote no. John McCain and Chuck Hagel have misgivings, with Hagel recalling the dark Republican days of the '70s when only a handful of Republican senators stood up against the Democratic tide.
Most worrisome to Frist is criticism from respected conservative voices -- George F. Will and the National Review -- that the nuclear opposition undermines a bulwark of limited government. But Republicans never have employed the filibuster to block liberal judges. The failure to confirm Lyndon Johnson's nomination of Abe Fortas as chief justice was caused not by a Republican filibuster (as is now claimed), but by inability to get a majority of votes in a heavily Democratic Senate. Using the filibuster to block judges is something new, and the Frist scenario looks like the only way to end it.