Senate Majority Leader Bill Frist is playing with fire when he suggests that Republicans will deploy the so-called "go nuclear" option to prevent Democrats from using filibusters to block controversial judicial nominations expected to reach the floor in mid-to-late February, says congressional expert Steven S. Smith
"Decrying Democrats' tactics as unconstitutional, Senate Majority Leader Bill Frist has threatened to ban judicial filibusters by majority vote, a procedural move dubbed the "nuclear option" since it would invite massive retaliation by Democrats," suggests Smith.
"Republicans should be careful what they wish for," he adds. "Republicans claim they can launch a surgical strike against Democrats by banning only judicial filibusters. In fact, the move will be nuclear—not only for the Democrats, but for Republicans and the institution of the Senate."
Smith is director of the Weidenbaum Center on the Economy, Government and Public Policy and the Kate M. Gregg Professor of Social Sciences at Washington University in St. Louis.
He is the author of five books on congressional politics, including Politics or Principle? Filibustering in the United States Senate (Brookings, 1977), which he co-authored with Sarah A. Binder, a senior fellow at the Brookings Institution.
In a recent analysis of filibuster use in the U.S. Senate, Smith and Binder concluded that filibusters of judicial nominations are plainly constitutional, and come on the heels of years of Republican success in blocking votes on President Clinton's judicial nominees. Any move by the Republicans to ban the filibuster may have unintended consequences, they warn, since there's no guarantee the ban will be restricted to debates over judicial nominations.
Under the nuclear option, Republicans would seek to change the Senate's rules during floor debate over a court nominee. In one scenario, as outlined in an article in The National Journal, Republican Rules Committee Chairman Trent Lott, R-Miss., would raise a point of order seeking a ruling from the presiding officer in the chair -- probably Vice President Cheney, the president of the Senate -- stating that filibusters of nominations to the federal bench are unconstitutional.
"The point of order would be a carefully worded one, I'm sure, well orchestrated with the vice president," Smith told the National Journal. "It would say something like, 'The Senate is obligated to cast a vote on judicial nominations,' and then state the constitutional grounds that it is essential to carrying out its responsibility to provide advice and consent. The vice president then would probably simply concur with the point of order, without consulting the [Senate] parliamentarian."
Democrats could challenge the point of order, but Republicans in the chamber would need only a simple majority to table or "kill" the challenge. If pushed through, the rule change would bar use of the filibuster as a means of blocking judicial nominations.
During the last Congress, Senate Democrats used the filibuster to block confirmation votes on 10 of President George Bush's nominations for the federal bench - a tactic that enraged conservatives and turned the judicial filibuster into a volatile campaign issue. Some suggest Republicans are attempting to do away with the filibuster now so that the tactic will be unavailable to Democrats seeking to block future Supreme Court nominees, as many as four of whom may be nominated during Bush's second term.
While Republicans theoretically have the power to deploy the nuclear option, Smith says the fallout from such a move would be so drastic that it's hard to imagine Republicans will make good on the threat. Republicans control 55 seats in the Senate, but some in their ranks are indicating they may not support changing the filibuster rule. If Republicans succeed in their efforts -- effectively abolishing the traditional right of the minority to force unlimited debate, Democrats are likely to escalate the battle, using other tactics to grind the legislative process to a halt. If Republicans are blamed for the gridlock, it could spur a huge backlash in the next election cycle.
Smith, an expert on parliamentary procedure and rulemaking in congress, suggests a more practical and feasible solution would be to consider changes in the Senate's Rule 22, under which 60 votes are required to cut off debate on a pending nomination and to bring the Senate to a vote on confirmations. He says the rule should be changed so that over a two-week period, the number of votes required for cloture (the end of legislative discussion) would fall from 60 to 57 to 54 and finally to 51. In this way, the Senate would have more than enough time to debate and educate the public so a vote could take place.