Drop The Bomb, Senator Frist

Okay, now I'm aggravated. Yesterday's Washington Post effort about the nuclear option for filibusters leaves me with one thought -- go for it, Senator Frist...

As speculation mounts that Chief Justice William H. Rehnquist will step down from the Supreme Court soon because of thyroid cancer, Senate Republican leaders are preparing for a showdown to keep Democrats from blocking President Bush's judicial nominations, including a replacement for Rehnquist.

Republicans say that Democrats have abused the filibuster by blocking 10 of the president's 229 judicial nominees in his first term -- although confirmation of Bush nominees exceeds in most cases the first-term experience of presidents dating to Ronald Reagan. Describing the filibusters as intolerable, Senate Majority Leader Bill Frist (R-Tenn.) has hinted he may resort to an unusual parliamentary maneuver, dubbed the "nuclear option," to thwart such filibusters.

"One way or another, the filibuster of judicial nominees must end," he said in a speech to the Federalist Society last month, labeling the use of filibusters against judicial nominees a "formula for tyranny by the minority."

So far, at least, Democrats are refusing to forgo filibusters and say they will fight any effort by Frist to act unilaterally to end them for judicial nominations. They warn that it could poison the well for bipartisan cooperation on other issues in the upcoming Congress.

"If they, for whatever reason, decide to do this, it's not only wrong, they will rue the day they did it, because we will do whatever we can do to strike back," incoming Senate Democratic leader Harry M. Reid (Nev.) said last week. "I know procedures around here. And I know that there will still be Senate business conducted. But I will, for lack of a better word, screw things up."

Democrats, however, face several constraints. Democratic strategists said that some of the party's senators from states Bush carried in the presidential election could be reluctant to support a filibuster for fear of being portrayed as obstructionist -- a tactic the GOP used successfully in congressional elections this year and in 2002.

...At issue is a seldom-used, complicated and highly controversial parliamentary maneuver in which Republicans could seek a ruling from the chamber's presiding officer, presumably Vice President Cheney, that filibusters against judicial nominees are unconstitutional. Under this procedure, it would take only a simple majority or 51 votes to uphold the ruling -- far easier for the 55-member GOP majority to get than the 60 votes needed to break a filibuster or the 67 votes needed to change the rules under normal procedures.

It would then take only 51 votes to confirm a nominee, ensuring approval of most if not all of Bush's choices.

Senate GOP leaders say no final decision has been reached on whether to use this maneuver (which they prefer to call the "constitutional option") and, if so, when. But they have signaled they may do so next year, either shortly after the new Congress convenes in early January or -- more likely, some Republicans say -- after Democrats mount a filibuster against another judicial nominee.

Historically, lawmakers of both parties have engaged in filibusters -- a word derived from the Dutch name for pirates to describe a process of unlimited debate that has been enshrined in the Senate for two centuries -- mostly to block or delay final votes on legislation. But filibusters have also been used against judicial and other nominations, although never in such a systematic manner, Republicans said. In 1968, Republicans filibustered President Lyndon B. Johnson's choice of Supreme Court Justice Abe Fortas to be chief justice, but Johnson withdrew the nomination in the face of Fortas's likely rejection by the Senate.

...Democrats contend the 10 filibustered judges are too far outside the legal mainstream to warrant lifetime appointments, describing them as the cutting edge of an effort by Bush to pack the courts with ideologically driven conservatives. They also argue that, during the Clinton administration, the GOP majority in the Senate blocked action on dozens of judicial nominations, without need for a filibuster because they could use their majority-party powers to bury nominations in committee or block them through anonymous "holds" on the Senate floor.

Republicans counter that, even though the number of filibustered nominations is small, the Democrats are trampling on the Constitution by denying a straight up-or-down vote for even a single nomination. The Constitution, they note, requires two-thirds majorities for treaties, constitutional amendments and other specific matters but calls for only the "advice and consent" of the Senate on judicial choices, with no reference to any super-majority for confirmation.

Democrats disagree, arguing that the Constitution empowers Congress to set its own rules of operation and does not specify the size of a majority needed for judicial confirmations because the issue was to be left to the Senate to decide. "What about all these people who say they want a literal reading of the Constitution?" asked Charles E. Schumer (D-N.Y.), a member of the Judiciary Committee.

There's so much crap in there it's hard to respond.

First, the use of the filibuster is unprecedented. To start, the GOP did not filibuster Fortas in 1968. For one thing, the Democrats had a 64-36 edge in the Senate in the 90th Congress from 1967-69. Any filibuster would have had to have been bipartisan.

Second, it wasn't even a filibuster as the term was understood. Both Senator Cornyn and Boyden Gray have noted that Fortas was subjected to a single cloture vote -- that would be one, for any Democratic electors from Minnesota reading this. That differs significantly from a permanent denial from cloture, especially when you consider that the single cloture vote for Fortas only netted 45 votes, which indicates that the nominee would have likely been rejected outright. According to Gray, this vote allowed Fortas' nomination to be withdrawn, thereby sparing both he and President Johnson any humiliation. By contrast, Bush's nominees are being denied votes when a majority of Senators are voting for cloture.

Next, Harry Reid's rhetoric is about as intelligent as taking hair care tips from Jim Carville. You're Harry Reid, and you're planning a mini-insurrection on legislative issues to strike back at the President? Who has more political capitol with the American people right now? Newt Gingrich tried shutting down the government after his party dominated the Democrats in the 1994 Congressional elections, and he still got his butt handed to him on a platter. Reid's seemingly willing to make the same mistake, with absolutely no qualms.

As for Democratic complaints about the GOP holding up Clinton nominees, please note that the Dems opened judicial confirmation follies with the Bork debacle in the 1980's. Also note that using one stupid Senate tradition (blue slip holds) to justify another (filibusters) is idiotic. And let's note that the GOP held up Clinton nominees the same way Dems held up Reagan nominees, and that bottling up the nominees in committee, when the GOP had a majority, was the equivalent of voting these judges down. Here, the Democrats don't have the majority, yet seek to act as the majority party.

Finally, for Chuckles Schumer, the only man in New York who loves cameras more than Donald Trump... I appreciate your sudden desire for strict interpretation. But if the Senate can determine how to "advise and consent" to a nomination, then having Dick Cheney change the rule as per a perfectly legal procedure seems to be perfectly in line with the Consitution. But maybe Chuck's been smoking with the Minnesota electors or something.