Anticipating that Senate Democrats will continue to block floor votes on President Bush's judicial nominees in the new Congress, Majority Leader Bill Frist (R.-Tenn.) last week firmly placed his finger on the trigger of what has been dubbed the "nuclear option," a dramatic rule change that would disallow filibusters of judicial nominations.
In his speech opening the new session of the Senate on January 4, Frist warned new Senate Minority Leader Harry Reid (D.-Nev.) of his intention to implement a change if the Democrats block a nominee from an up-or-down floor vote.
"In the last Congress, I believe the Senate failed to perform an essential constitutional duty," Frist said. "It failed to offer advice and consent to the President by filibustering 10 of his judicial nominees and threatening to filibuster another six. These filibusters were unprecedented. Never in the history of the Senate has a minority filibustered a judicial nominee with clear majority support. This was an abrupt and unfortunate break with more than 200 years of Senate tradition. This tradition must be restored."
February Showdown
Frist signaled that the showdown would come in February. "Next month, we'll have the opportunity to restore Senate tradition," he said. "I'll bring one of the President's very capable, qualified, and experienced judicial nominees to the floor. We can debate that nomination. We can vote to support or oppose it. And we must offer the President advice and consent by giving this and future judicial nominees who are brought to the floor up-or-down votes."
Frist warned that his final decision on whether to change Senate filibuster rules will depend on the behavior of Senate Democrats under their new leader Reid. "If my Democratic colleagues exercise self-restraint and don't filibuster judicial nominees, Senate traditions will be restored," Frist said. "It will then be unnecessary to change Senate procedures. Self-restraint on the use of the filibuster for nominations-the same self-restraint that Senate minorities exercised for more than two centuries-will alleviate the need for any action. But, if my Democratic colleagues continue to filibuster judicial nominees, the Senate will face this choice: Fail to do its constitutional duty, or reform itself, restore its traditions, and do what the Framers intended."
Republicans lack the 60 votes to overcome a filibuster. But under the options that Frist is considering, the GOP would need only 51 senators to confirm a nominee. (Republicans control 55 Senate seats.)
Senate sources tell HUMAN EVENTS Frist is strongly considering an option that would set a new precedent on judicial confirmations without altering the text of Senate Rule XXII, which governs the filibuster. These sources point out that four times in the 1970s and 1980s former Majority Leader Robert Byrd (D.-W.Va.) used a simple majority vote to set new precedents on Senate rules.
A document circulating among Senate Republicans and conservative legal circles in Washington, D.C., outlines the plan. "A senator would raise a point of order to close debate on a nominee," it says. "The presiding officer [Vice President Cheney] would sustain the point of order, thereby setting a new, binding precedent. The minority's appeal of the ruling could be tabled with a simple majority vote."
The plan has become known as the nuclear option, but it is only one of a number of moves Frist could make to counter a Democrat filibuster. Another option-never before tested in the Senate's history-would amend Rule XXII to differentiate between filibusters that block legislation and those that block confirmation of presidential nominees.
Former Judiciary Chairman Orrin Hatch (R.-Utah) wrote in HUMAN EVENTS last month that the Senate could amend Rule XXII at the start of the 109th Congress with a simple majority vote. He cited a resolution that he co-sponsored with Frist in the last Congress that would have ended filibusters of judicial nominees by requiring a diminishing number of senators to vote for a cloture to end Senate debate on a nomination.
Historically, a rule change such as this during the middle of a Senate session would require 67 votes, Hatch argued. But in his January 4 speech, Frist said: "I reserve the right to propose changes to Senate Rule XXII and do not acquiesce to carrying over all the rules from the last Congress." This language may well have been inserted in an effort to keep open the option of changing the filibuster rule by a simple majority vote even after the session has started.
Stage Is Set
Reid was mum on Frist's remarks. But Senate Republicans expect him to be just as ruthless as defeated Minority Leader Tom Daschle (D.-S.D.) in blocking conservative appellate court nominees. Just before Christmas, when Bush announced his plans to renominate 20 judicial candidates that the Democrats had blocked in the last Congress, Reid immediately labeled the nominees "extreme."
It remains unclear which judicial nominee Frist will bring to the floor first in February. All of them-including those re-nominated by Bush-must first win approval from a Judiciary Committee now led by liberal Sen. Arlen Specter (R.-Pa.).
By setting the stage for a fight as early as February, Frist has positioned Republicans to change the Senate filibuster rule before a vacancy occurs on the Supreme Court. But he still may face an intra-party challenge on the issue. If more than five Republicans dissent, the Democrats could defeat any effort to change the filibuster rule.
Sen. John McCain (Ariz.) has already signaled he would not support a change. Sen. Chuck Hagel (Neb.), who often aligns himself with McCain, could also defect. Other possible "nay" votes include liberal Senators Lincoln Chafee (R.I.), Susan Collins (Maine), Olympia Snowe (Maine) and Specter.
With the possible, yet remote, exception of Sen. Ben Nelson (D.-Neb.), Democrats are expected to maintain a united front.
Historic Moment
Two leading GOP senators-George Allen (Va.) and Trent Lott (Miss.)-told HUMAN EVENTS they would support a change in Senate rules or procedures immediately, if that's what Frist asked of them. Hatch, too, said he would abide by Frist's ultimate decision.
"All the leader needs to do is propose it," Allen told HUMAN EVENTS. "Given what's happened in the past-and we have the numbers now-there's no reason the President's judicial nominees, and for that matter Cabinet secretaries, ought to be held up."
Frist's former counsel Manuel Miranda lauded the speech. "What Frist did [on January 4] was a historic moment in the Senate," said Miranda, who organized the fight for judicial nominees in the 108th Congress. "It was one of the boldest things he could have done. He took an enormous step that few majority leaders have done before."
Miranda said Frist's staff must be confident it will able to change Senate procedures or amend Rule XXII later this year with a simple majority vote or Frist would not have made the threat in his speech.
But any change-whether an amendment to Rule XXII or the nuclear option-is likely to have some conservative critics, who fear such a change could undermine the principle that the Senate is a continuing body with unbroken traditions that date back to 1789, and that, unlike the House of Representatives, it does not reestablish itself every two years.
There is also the fear that the Republicans will eventually return to minority status and might regret the inability to block Democratic judicial nominees with filibusters. If history is a guide, however, that fear is moot. Republicans have never filibustered a judicial nominee who could win a majority vote on the Senate floor, and, in the case of President Bill Clinton's two Supreme Court nominees, Ruth Bader Ginsburg and Stephen Breyer, they overwhelming voted for confirmation.
