IT’S HARD TO IMAGINE how the Senate could become more partisan than it is today. But that’s what Democrats vow will happen if Republicans attempt a rare parliamentary maneuver to break the stalemate over President Bush’s judicial nominees.
With 10 nominations now blocked by filibuster, many GOP senators say it’s time to use the “nuclear option”–or, as they prefer to call it, the “constitutional option.” The leading advocate of this strategy is Mississippi senator Trent Lott. He would have Republicans move before the election, ideally in September. “At least 45 of the 51 GOP senators would say, ‘Let’s go for it,'” Lott insists.
“It” might work something like this. Republicans would request a ruling from the Senate chair that the cloture rule–requiring 60 votes to end debate–is unconstitutional as applied to judicial confirmations. This would mean the Democratic minority could no longer prevent yea-or-nay votes on nominees they oppose. Once this ruling came down (very likely from Vice President Dick Cheney), Republicans would need a majority to uphold it, after which the Senate could move to up-or-down votes on Bush’s nominees.
The principal barrier to this maneuver is Senate Rule XXII. It requires not only a three-fifths supermajority of all senators (60 votes) for cloture, but also a two-thirds supermajority of senators “present and voting” (67 votes if all are present) to change Senate rules. So a bare GOP majority couldn’t possibly amend the chamber’s filibuster rule. Or could it?
Back in 1975, a narrow majority of Senate Democrats did just that. They used the so-called nuclear option to lower the threshold for invoking cloture from 67 to 60 votes. “We cannot allow a minority, a small group of members, to grab the Senate by the throat and hold it there,” Democratic majority leader Mike Mansfield said at the time. Senators Patrick Leahy, Ted Kennedy, and Joseph Biden–each of whom sits on the Senate Judiciary Committee today–agreed. So did West Virginia senator Robert Byrd and Hawaii senator Daniel Inouye. All five Democrats voted in favor of the change 29 years ago.
That is the only time the Senate has ever modified its rules by the nuclear route. An eclectic mix of liberal and conservative scholars have since argued that Rule XXII is unconstitutional, as it binds present and future Senates to rules enacted by a previous Senate. Douglas Kmiec, dean of the Catholic University Law School, wrote in the Wall Street Journal in March 2003 that Rule XXII
Whatever its legal merits, the nuclear option faces an uphill battle. Should Senate Republicans push the button, Democrats have promised to freeze all legislative activity and bring the chamber to a halt (a “nuclear winter,” as it were). “That clearly is a risk for [Republicans],” says one senior Democratic aide, “if they’re seen scoring political points rather than taking care of business.” Todd Webster, communications director for Senate minority leader Tom Daschle, notes that even several Republicans think it’s a bad idea. “There is no more powerful condemnation of the nuclear option,” he says.
The Republican holdouts are mostly liberals and moderates: senators Lincoln Chafee, Susan Collins, Olympia Snowe, and possibly John McCain and Arlen Specter. But some prominent conservatives–namely Senate majority whip Mitch McConnell, John Warner, and Judiciary Committee members Jon Kyl and Charles Grassley–have also expressed reluctance to go nuclear. “Unless it [will succeed], it shouldn’t be used,” Sen. Grassley says. “We can’t afford to lose this one.”
There are 51 GOP senators; and only one Democrat, Georgia’s Zell Miller, has endorsed the nuclear solution. Not surprisingly, few expect the Republicans to go nuclear before the election. “There’s not enough support for it,” a Republican judiciary staffer says. “You’d only get 40 votes in favor of it in the end.”
The GOP’s more likely preelection tactic, according to this staffer, will be to stack up cloture votes on all the filibustered nominees in a single day. Texas senator John Cornyn, who chairs the Judiciary Subcommittee on the Constitution, supports using cloture-vote stacking to “raise the visibility” of the filibusters. But he feels it should be a precursor to the nuclear option. Cornyn believes Republicans are “within 2 votes” of securing a majority for altering Senate Rule XXII. Sen. Lott agrees that they’re close, perhaps within a single vote. But even he doesn’t expect the Republican leadership to go nuclear on judges–if it does at all–until after the election or early 2005 (assuming Bush and a GOP Senate majority are reelected).
In the meantime, Republicans hope the filibuster issue will help President Bush–or, at the very least, GOP Senate candidates–in the November election. A senior GOP aide claims any reference to judicial gridlock is “an applause line for the president,” and the Democrats “are nervous about it.” He points out that Republicans Saxby Chambliss (in Georgia) and Norm Coleman (in Minnesota) got traction in their successful 2002 Senate campaigns from ads criticizing Democratic obstructionism on judges.
Pennsylvania Republican Rick Santorum says the issue appeals strongly to conservative voters. “It’s probably more important for Senate candidates than it is for the president,” he explains, particularly given the debate over judicially imposed same-sex marriage. Sean Rushton, executive director of the conservative Committee for Justice, thinks the federal judiciary will be a “high-visibility issue in key battleground states” such as Colorado, Missouri, Ohio, and Florida. “I think all the [GOP Senate candidates] will use it,” a Republican judiciary staffer says, “especially those in the South.”
To Democratic ears, such talk is proof of conservative extremism. A senior Democratic aide contends the GOP judicial strategy has been to target “the right wing of the Republican base.” This aide also insists that “Democrats have been far more cooperative with President Bush [on judges] than Republicans were with President Clinton.”
That isn’t quite right. It’s true, Republicans did drag their feet on many Clinton nominees, particularly in his second term. And, in a few cases, they even tried to filibuster. But what’s unprecedented about current Democratic tactics is the use of filibusters to block judicial nominees who would otherwise be confirmed by a floor vote. As Todd Gaziano has written in the National Law Journal, “neither party has ever used a filibuster to permanently block a confirmation vote of someone with majority Senate support.”
Of the 34 circuit court judges President Bush has nominated since the 108th Congress began, 10 have been filibustered (including Miguel Estrada, who withdrew his name from consideration in September 2003). Republicans tried to call attention to the filibusters with their 40-hour marathon debate last November. At that time, GOP senators were lobbying for a solution offered by Senate majority leader Bill Frist and Zell Miller. Under their plan, the number of votes needed to break a judicial filibuster through cloture would have declined with each attempted cloture vote from 60 to 57 to 54 to 51–and finally to a simple majority of those present and voting. But the Frist-Miller proposal failed.
Some conservatives regret that procedural rows have so dominated the Senate debate over Bush’s nominees. Underlying the filibuster spat, they say, is the real casus belli of the confirmation wars: a sharp disagreement between the parties over judicial imperialism and how the courts should rule on touchstone issues. As one GOP judiciary staffer puts it, “We’ve lost focus on what we should be talking about, which [are] the principled, core beliefs of the Republican party.”
Duncan Currie is an editorial assistant at The Weekly Standard.
