by Margaret Talev
March 08, 2005
Under any name, what they're talking about has nothing to do with foreign policy. It's a controversial maneuver through which the majority party could stop Democrats from using filibusters to block some of President Bush's more conservative judicial picks from getting voted upon by the full Senate. Last week, speculation swelled over whether the nuclear option will be triggered, as new hearings got under way for nominees whose confirmation votes Democrats blocked during Bush's first term.
This may sound like just another game of inside baseball at a time the nation's leaders should be worrying about terrorism or the economy. But legal experts, advocacy groups and historians say the debate over whether to stop such filibusters cuts to the core of American democracy, raising questions about the system of checks and balances among the executive, judicial and legislative branches of government, and between the majority and minority political parties.
Under the Senate's current rules, it takes a three-fifths vote to stop a filibuster; Republicans control less than that, with 55 of the Senate's 100 seats. The nuclear option relies on the argument that the party in power can change the rules that govern the Senate, and by doing so could create a new rule that shuts off debate with a simple majority vote. Critics say that goes against the deliberative spirit of the Senate, where the two-to-a-state system of representation, rather than one based on population, means the majority party may actually represent a smaller number of Americans than the minority party.
The counterargument is that the Senate has an advise-and-consent role in considering the president's judicial picks, and blocking the majority from voicing its opinion goes against that duty.
Democrats have blocked 10 of Bush's appellate court nominees by filibuster or the threat of one. That's less than 5 percent of Bush nominees that have been confirmed, but the minority's successful defiance of lifetime appointments for people with whom they disagree ideologically got so deeply under conservatives' skin that party leaders went to the history books and to the Constitution to build a case for why the practice is inappropriate and how the majority party could rally its resources to stop it.
They looked to Martin Gold, a Capitol Hill veteran who was a former procedural adviser to Senate Republican leader Bill Frist of Tennessee and a widely recognized authority on the rules of the Senate. Gold and a colleague who was a former appellate law clerk and attorney with the Department of Justice wrote a 66-page article for a Harvard law journal detailing the "constitutional" option.
They wrote that the filibuster _ the practice of endlessly delaying of a vote by speechmaking _ was not a right set forth by the founding fathers but instead came into play in the early 1800s, and that it was seen as a way to modify or block legislation, not to dead-end nominees.
The roots of the constitutional option date to 1917, as President Woodrow Wilson and his allies in the Senate looked for a way to shut down a filibuster aimed at preventing U.S. engagement in World War I. Instead of a simple-majority threshold, senators established a two-thirds vote for cutting off debate. In 1975, under threat of invoking a simple-majority vote and rule change, that was relaxed to the three-fifths vote requirement still in place.
"Nuclear" may be an apt descriptor for the threatened, but untested option, not just because of the devastating effect it might have on the political climate in Congress if actually carried out, but also because the very idea of it acts as a deterrent to the other side. Gold details several occasions, beyond 1917 and 1975, when the threat of the constitutional option forced the agitating minority to back down.
The outcome of this year's standoff could shape the appellate bench for decades to come, and with it the interpretation of a variety of laws throughout the nation. And many believe it could affect Bush's search for a successor to Chief Justice William Rehnquist, who has thyroid cancer.
Should the GOP hit the button, so to speak, Democrats are promising all-out partisan war from now until the 2008 elections, which could drag down progress on other issues, such as Social Security reform. But if the Democratic leadership continues to threaten to filibuster appellate nominees - a practice rarely employed before Bush's election in 2000 - because they disagree ideologically with their past rulings on cases involving abortion, land-use rights or race issues, Republicans say they may have no choice but to act.
Many constitutional scholars think the nuclear option could survive a court challenge. But few say it would yield a positive outcome - and some say it has such a potential downside that they don't believe Republicans will go through with it.
"If the Republicans try to do this, the Democrats will grind the Senate to a halt," said Erwin Chemerinsky, a Duke University law professor who also has researched filibusters. "So much operates on a consent calendar, and the Democrats can keep that from happening."
While Democrats try to paint Republicans as the bullies in this scenario, history reveals a murkier picture. Democratic Sen. Robert Byrd of West Virginia took to the floor recently with a fiery speech that included references to Nazi Germany and Italy under Mussolini. "If we restrain debate on judges today, what will be next: the rights of the elderly to receive Social Security; the rights of the handicapped to be treated fairly?" he asked. "With no right of debate, what will forestall plain muscle and mob rule?"
But in the law-review article, Gold and co-author Dimple Gupta portray the same Byrd as having forcefully argued the legitimacy of the constitutional option more than a quarter of a century ago, at a time when his party was in charge and he was majority whip.
Some Republicans now are drawing a distinction between confirmation of judicial nominees and executive nominees. But Democrats say that's an opportunistic argument. A decade ago, the GOP used the filibuster to block confirmation of President Bill Clinton's choice for surgeon general, gynecologist Henry Foster, who had performed abortions.
Frist has talked tough about stopping the filibusters. But he's sent mixed messages about how far he's willing to go to stop them - or whether he can even pull together enough Republican support to go nuclear if he wants to.