Senate Majority Leader Bill Frist (R-Tenn.) has been doing
his best Dr. Strangelove imitation of late, telling anyone
who will listen that he is ready, willing and able to blow
up the Senate to stop Democrats from filibustering President
Bush's judicial nominees. Democratic Senators should respond
by learning to love the bomb.
Frist's so-called "nuclear option" is a power grab
disguised as a parliamentary maneuver. Under the most common
iteration of this "option," Vice President Cheney
would take the chair as presiding officer of the Senate and
Frist would bring a "point of order," arguing that
the filibuster rule cannot be applied to prevent a vote on
a judicial nomination. Cheney would uphold this point of order,
setting a new, binding Senate precedent allowing Senators
to cut off debate on judicial nominations. Democrats could
challenge this ruling, but it takes only a majority vote to
sustain a ruling by the presiding officer. Through this maneuver,
Frist would circumvent a longstanding rule that requires a
two-thirds majority to change Senate rules.
The Senate filibuster rule has never been changed this way,
which is why Sen. Trent Lott (R-Miss.) labeled this option
"nuclear." Conventional wisdom has the maneuver
benefiting Republicans, since it would make it easier for
them to confirm Bush's judicial picks. Yet invoking it now
could actually work to Democrats' advantage.
One reason is that Democrats right now are on the defensive,
fending off charges of judicial obstructionism. In a flash,
they could go on the offensive with a potent new argument
about the Republican majority's effort to eliminate dissent
and create a single-party government. Most voters pay little
attention the judicial nominations debate, but they understand
hubris, and they don't like bullying by either political party.
In addition, changing the filibuster rule would not end the
debate on judicial nominations. In fact, it would put this
debate on new terms more favorable to Democrats, as the fissures
between Republicans in the Senate would be shown in a harsh
The argument that Democratic filibusters are all that stands
between Bush's nominees and judges' robes only holds up if
one assumes that Republican Senators, who have voted lock-step
to oppose Democratic filibusters, would similarly support
all of Bush's judicial nominations. Yet if one takes even
a cursory look at the views of blue-state Republican Senators
such as Lincoln Chafee (R.I.), Olympia Snowe (Maine) and Susan
Collins (Maine) - not to mention the views of the constituents
they represent - that assumption evaporates.
The oft-overlooked reality of the nuclear option is that it
would shift the decision-making pressure and the public attention
away from moderate Democrats, who are needed to sustain a
nominations filibuster, to moderate Republicans, who are needed
to confirm Bush's appointees. Democrats, one could argue,
have been doing these Republicans a huge favor all this time,
allowing them to toe the party line by voting to break a filibuster
while letting them dodge an actual vote on the president's
most radical nominees. Notably, moderate Republicans have
been extremely reluctant to support the nuclear option. Could
it be that going nuclear would force them to choose between
the views of their party and the views of their constituents?
Moreover, if the Republicans go nuclear, it would give Democrats
at least a limited license to throw sand in the gears of Frist's
legislative ambitions. As Sen. Arlen Specter (R-Pa.) has recognized
recently, the nuclear option would throw the Senate into "turmoil"
and would make the Senate Judiciary Committee "hell."
Granted, Democrats would have to proceed carefully to avoid
a backlash similar to the one that dogged the Republicans
in the government shutdown of 1995. But if Democrats handle
the situation skillfully, they would be able to foist the
blame on Republicans for counter-maneuvers that slow Frist's
agenda to a crawl.
Finally, for bad or good, nuclear is forever. It would take
off the table the most potent weapon in the arsenal of the
party out of executive power. Democrats would welcome this
change if one of their own is nominating judges in 2009.
Perhaps all of this explains why we have yet to see the nuclear
option. It may be that wiser political heads are preventing
Frist from obtaining 51 votes for this strategy. Or maybe
Frist is just bluffing, hoping Democrats respond by letting
even the most extreme Bush judicial nominees through.
It is this last result that Democrats should fear most. Democrats
win if they stick to their principles and the Republicans
don't go nuclear. They lose outright only if they are so cowed
by the threat of the nuclear option that they abandon their
principles to avoid a fight.
Clearly, the nuclear option entails consequences that Democrats
would loathe - namely, the confirmation of at least a few
appeals court nominees that they believe are unfit for lifetime
judicial seats, as well as greater leeway for Bush in any
nominations he makes the Supreme Court. Even so, life in a
post-nuclear Senate has advantages for Democrats that caving
in does not. If, as promised, Frist detonates the nuclear
option, Democrats should express all appropriate outrage,
gear up for even more difficult nomination fights, and laugh
all the way to the next election.
Douglas T. Kendall is founder and executive director of
Community Rights Counsel, a nonprofit law firm based in Washington,
D.C., that works on judicial confirmation issues. Jennifer
Bradley is an attorney and program director at Community Rights
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