Byrd's nuclear option

Posted: Dec 20, 2004 12:00 AM

WASHINGTON -- A scenario for an unspecified day in 2005: One of President Bush's judicial nominations is brought to the Senate floor. Majority Leader Bill Frist makes a point of order that only a simple majority is needed for confirmation. The point is upheld by the presiding officer, Vice President Dick Cheney. Democratic Leader Harry Reid challenges the ruling. Frist moves to table Reid's motion, ending debate. The motion is tabled, and the Senate proceeds to confirm the judicial nominee -- all in about 10 minutes.
This is the so-called "nuclear option" that creates fear and loathing among Democrats and weak knees for some Republicans, including conservative opinion leaders. Ever since Frist publicly embraced the nuclear option, he has been accused of abusing the Senate's cherished tradition of extended debate. In truth, during six years as majority leader, Democrat Robert C. Byrd four times detonated the nuclear option to rewrite Senate rules.

 Thus, Frist would set no precedent, would not contradict past Republican behavior and would not strip the GOP of protection as a future Senate minority. The question is whether Republican senators will flinch from the only maneuver open to confirm Bush's judges.

 The unprecedented Democratic plan to filibuster judicial nominations that do not meet liberal specifications has exceeded all expectations. None of 10 filibustered Bush appellate court nominees has been confirmed, and another six are all designated filibuster victims. This is intended to have a chilling effect on Bush in filling Supreme Court vacancies.

 All 16 of these nominees are dead under present procedures. Even with the net gain of four Republican senators in this year's elections, Frist falls short of the 60 votes needed to cut off debate. After early skepticism, I have come to agree with Frist's conclusion that the old-fashioned filibuster-breaker of round-the-clock sessions is a non-starter. Today's Republican senators lack the will to undergo this ordeal. They would have to maintain a heavy presence on the floor while a single Democrat could hold forth.

 Frist drew a line in the sand Nov. 11 in addressing the conservative Federalist Society: "One way or another, the filibuster of judicial nominees must end." The way he indicated was a rules change -- the nuclear option.

 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.