As Senate Republicans last week conducted a marathon 30 hours of debate to protest and spotlight the Democrats’ unprecedented filibuster to block confirmation of appeals court judges, President Bush called three of his nominees into the Oval Office and threw down the gauntlet to the obstructionist Senate Democrats.
Flanked by Texas Supreme Court Justice Priscilla Owen, California Supreme Court Justice Janice Brown and California Superior Court Judge Carolyn Kuhl, Bush said, “These people deserve an up-or-down vote on the Senate floor, and yet a few senators are playing politics and it’s wrong and it’s shameful.”
“I will stand with them to the bitter end,” said the President.
The Senate at that point was already 15 hours into the GOP-led 30-hour marathon. At the conclusion of the speaking, Senate Majority Leader Bill Frist (R.-Tenn.) was expected to bring up Senate Resolution 138, a proposal to gradually lower the number of votes needed to invoke cloture and end debate on presidential nominations.
Currently, 60 votes are needed-an impossible threshold for a GOP that controls only 51 Senate seats. Frist’s plan is to propose a succession of resolutions that would progressively lower number of votes needed to invoke cloture. Because Senate rule changes now require a two-thirds vote, there is no chance any of these resolutions will pass.
That is why Senate insiders believe that losing these votes to the uncompromising Democrats may increase both popular and Senate support for the so-called “nuclear option.”
Under this scenario, a Republican senator would make a point of order that it is unconstitutional to require more than 51 votes to confirm a presidential nominee and request a ruling from the chair. If the chair, as planned, rules that the point of order is correct, a simple majority of the full Senate-which the Republicans have-could uphold his ruling, effectively changing Senate rules to force simple up-or-down majority votes on nominations. Filibusters would be eliminated for presidential nominations, period.
That would mean all of President Bush’s currently stalled judicial nominees would be confirmed. It would also significantly increase the chances that Bush could confirm a conservative to the Supreme Court-especially, if, as widely expected, the Republicans pick up Senate seats next November.
Many on Capitol Hill fear, however, that playing out this scenario could have an almost cataclysmic effect on the almost evenly divided Senate-whether the GOP move succeeds or even if a few Republicans bolt and allow the Democrats to overturn the ruling from the chair. As one senior Republican aide told me, “If Republicans can’t come up with the 51 votes, just trying it would be akin to dropping a bomb on a neighboring state but failing to kill the heads of government. They are not going to say ‘You missed!’ and leave it at that. They’re going to retaliate in a big way. So you’ve got one bullet and you can’t shoot and miss.”
The hawks on this issue aren’t just worried about defectors from among the usual suspects-Senators Lincoln Chafee (R.I.), Olympia Snowe (Maine), Susan Collins (Me.), Ted Stevens (Alaska) and Arlen Specter (Pa.)-they are also worried about some ordinarily more reliable conservatives getting cold feet.
“The reason Republicans don’t have all 51 of their senators,” said a Senate aide, “is that a number of them-and not just the non-conservatives-are worried that changing the rules would make it easier someday for a President Hillary Clinton to get her judicial nominees through the Senate.” Still, the “nuclear option,” the aide said, comes up at “almost every meeting of the [Senate] Republican Conference.” Its strongest proponents are Senate Judiciary Committee Chairman Orrin Hatch (Utah) and Conference Chairman Rick Santorum (Pa.).
The argument against going nuclear, however, falls short in the face of the fact that Republicans basically rubber-stamped President Bill Clinton’s judicial nominees. For example, Only three conservatives-Senators Jesse Helms (N.C.), Don Nickles (Okla.) and Bob Smith (N.H.)-voted against confirming far left-wing ACLU lawyer Ruth Bader Ginsburg to the Supreme Court. When Nickles retires next year, all three of those fighting conservatives will be gone from the Senate.
Frist spokeswoman Amy Call told HUMAN EVENTS, “At this time, all options are open.” Earlier this year, Frist, himself, spoke to me about the nuclear option, saying, “I carry it in my pocket.” He was concerned, however, about not having the votes to pass it. Asked about the long-term wounds it might inflict on the Senate, the former surgeon deadpanned: “Remember-I used to cut people’s hearts out for a living.”