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How We Learned to Stop Worrying and Love the Bomb

Roll Call
April 5, 2005
Douglas T. Kendall and Jennifer Bradley


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 spotlight.

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.

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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 Counsel.

Copyright 2005 © Roll Call Inc. All rights reserved.

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