The GOP's 55-seat Senate majority has given new life to Republican proposals to mandate an up-or-down vote on judicial nominations, which would halt Democrat-led filibusters such as the ones that blocked 10 of President Bush's first-term nominees.
Republican senators told HUMAN EVENTS they would support a move dubbed the "nuclear option," which would clarify the interpretation of Senate Rule XXII. The rule describes the process of voting for "cloture," which requires 60 votes, and which ends Senate debate and allows a final vote on an issue. Republicans have been able to muster only 55 votes at most when attempting to end debate and force a vote on filibustered Bush nominees.
Senate Majority Leader Bill Frist (R.-Tenn.) declined to specify what approach he would take to ending the filibusters when asked about them at a Wednesday press briefing. Frist indicated he would reach out to new Minority Leader Harry Reid (D.-Nev.), who inherited the job from outgoing Sen. Tom Daschle (D.-S.D.), who was the mastermind of the filibusters.
"The point is," Frist said, "if we could go back to what we've done for 200 years under the rules of this institution . . . we probably wouldn't have to change anything."
Brighter Prospects
The prospect of Reid's working with Republicans remains remote. He has repeatedly suggested he would not compromise his Democrat principles as minority leader. In his previous job as Democratic whip, Reid worked arduously to count, and keep in line, the votes needed to sustain Daschle filibusters.
With the gain of four seats in the Senate, however, Republicans might not need to strike a deal with the Democrats. Senate Rules Chairman Trent Lott (R.-Miss.) told HUMAN EVENTS the GOP didn't have enough votes with their 51-seat majority in the last Congress to pass a rules change or institute the "nuclear option." That may change in this Congress. "If they're smart, [Democrats] need to look at the numbers," said Lott, whose committee approved a filibuster rules change in June 2003. "And they also need to realize that obstructionism hurt them. It was a factor in those five Southern races."
In the 108th Congress, a handful of Republicans balked at a rules change, fearing it might come back to haunt them if a Democrat was elected President and Democrats took control of the Senate.
But the incoming class of seven freshman Republicans is largely conservative. As candidates, many ran against the judicial obstructionism of the Democrats. One of the victors from the South, Sen.-elect David Vitter (R.-La.), said it was a signature issue in his campaign.
"People in the real world view the process as completely broken," Vitter said. "I don't think it's any accident that the person who led the obstructionism, Tom Daschle, was defeated."
First-term Sen. John Cornyn (R.-Tex.), a member of the Judiciary Committee, has been one of the most outspoken opponents of the Democratic filibusters. He said there was a strong likelihood Republicans would take action to prevent a repeat of what happened in the last two years. "That was what the election was all about," Cornyn told HUMAN EVENTS.
The Daschle-orchestrated filibusters began in March 2003 with Miguel Estrada's nomination to the U.S. Court of Appeals for the District of Columbia. After seven Republican attempts to invoke cloture on his nomination, Estrada withdrew from consideration. In addition to Estrada, Democrats successfully blocked nine other nominees, including four as recently as July.
"The original intent in the Constitution is a simple majority," Sen. John Ensign (R.-Nev.) told HUMAN EVENTS. "I think we ought to change the rules to make sure it reflects what the Constitution intends."
As a friend of Reid from Nevada, Ensign suggested it might be possible to work out a deal with the new Democrat leader. "For the sake of the Republic, and I don't say that lightly, I think it's important we get this done," Ensign added. "The bottom line is, you win the election, you get your nominees."
Outgoing Senate Judiciary Committee Chairman Orrin Hatch (R.-Utah) said he subscribes to the same belief. Hatch said he was proud of his record as Judiciary chairman under President Bill Clinton because he refused to hold up nominees, sometimes taking flak from conservatives.
"I would prefer going to the Democrats and saying, 'Look, we're going to resolve this one way or the other. We'd like to do it with a rules change that affects both parties equally,'" Hatch said. "If they're unwilling to do that we're going to do it whatever way we can. And it's going to be binding on both parties."
Four Options
At least four scenarios exist for halting the filibusters, said Manuel Miranda, former counsel to both Frist and Hatch on judicial nominations. Since leaving the Senate in February, Miranda has criticized the Democrat obstructionism, which was documented in a series of memos highlighting the influence of liberal interest groups on nominees.
Frist's attempt to reach an accord with Democrats might be remote, but it's a starting point, Miranda said. After that, Frist might consider something similar to the proposal he offered in 2003 with Sen. Zell Miller (D.-Ga.), which would have gradually lowered the number of votes need to invoke "cloture" and force a final vote on a nominee.
Then there's the so-called "nuclear option," which would require 51 supportive senators to be present on the Senate floor when the GOP makes a motion on the interpretation of Senate Rule XXII, Miranda said. The presiding officer would then confirm that only a simple majority is needed to confirm a nominee.
The final option, and the most unlikely, according to Miranda, involves rewriting the Senate rules themselves at the beginning of the 109th Congress. Former Vice Presidents Richard Nixon (R), Hubert Humphrey (D) and Nelson Rockefeller (R), while serving in their capacity as Senate president, agreed that the Senate could change its rules at the start of its new session.
"I support the constitutional option, I support a rule change, I support elimination of the unconstitutional filibuster by any legal means," said Cornyn, the Texas senator.
Until the GOP formulates its strategy, Frist plans to maintain a certain degree of "civility" toward his Democrat colleagues, he said at Wednesday's press briefing. At the same time, however, he said the Republicans strongly believe the filibuster is wrong.
"We have constitutional duty to give advice and consent," Frist said. "That's our constitutional duty. That is shared by every member of our caucus because that's what our responsibility is. We feel as a caucus we have been denied that opportunity in the last Congress for the first time in history."
