Congress heads toward nuclear winter
By ROBYN E. BLUMNER
Published January 16, 2005
Will the nuclear option be detonated? And if so, when? This is likely on the mind of every U.S. senator. It could happen as soon as next month.
The term "nuclear option" sounds like an 11th-hour war plan hatched in the bowels of the Pentagon. Actually, it refers to a parliamentary maneuver that Senate Majority Leader Bill Frist is considering as a way to make sure all of President Bush's judicial nominees are voted on by the full body. It's called "nuclear" because of the devastation its use is sure to cause to any remaining cooperation across the aisle.
If this raw power is asserted, Democrats have promised to throw a wrench in the Senate's works. But Republicans don't seem to care. The GOP is in control of the chamber with a 55-to-44 majority (with one independent), and Frist has indicated that the nuclear option is a distinct possibility if the Democrats filibuster any nominees. "One way or another, the filibuster of judicial nominees must end," Frist told the conservative Federalist Society in November.
It doesn't matter that President Bush had 204 judicial nominees confirmed in his first term - more than any president in four of the last five terms. Senate Republicans are stuck on the 10 ultraconservative nominees who were successfully filibustered. Bush has vowed to renominate those 10 plus another 10 whose confirmations had not been voted on by the time the 108th Congress adjourned.
With Bush's in-your-face decision comes a virtual certainty that Democrats will have to resort to the filibuster again.
So here's how the nuclear option would work: Senate rules can be altered only by a two-thirds vote, and to end a filibuster (which refers to an endless debate) takes 60 votes - neither of which the GOP has. So rather than rely on these honest and traditional means of moving forward, Senate GOP leaders would seek a ruling from Vice President Dick Cheney, as president of the Senate, that filibustering judicial nominees is unconstitutional. (It's not, of course, but that wouldn't stop Cheney from saying so.) Cheney's determination then could be upheld by 51 votes, a simple majority.
That small step would transform the Senate from a body that has historically encouraged compromise and moderation by granting a modicum of power to the minority party, to one that operates like the House, where might makes right.
Why are we staring down the blade of this bulldozer right now?
One man: Orrin Hatch.
Hatch has done more to sow bitter division and partisanship than any senator since John C. Calhoun. In his role as chairman of the Senate Judiciary Committee, the Utah Republican obliterated a series of longstanding formal and informal agreements on judicial nominees that had ensured input by minority party senators.
Rules that Hatch strictly enforced during Clinton's tenure were suddenly wiped away as soon as Bush took office.
Under Hatch, more than 60 of Clinton's judicial nominees were held up through anonymous "holds" by a single senator and through other procedures. Now, with Bush making the picks, "holds" and other opportunities for objections are no longer honored.
How convenient that Republicans suddenly believe it's unconstitutional - a violation of the Senate's "advice and consent" role - for 41 senators to support a filibuster, thereby keeping some judicial nominations from an up-or-down vote. Yet when Clinton was president, the objection of just one senator was enough to stymie a nomination. (It should be noted that Frist himself supported a judicial filibuster in 2000. He voted against cloture - the end of debate - for Clinton nominee Judge Richard Paez.)
The Senate Judiciary Committee used to recognize the Thurmond-Biden agreement, in which only one controversial judicial nominee would receive a hearing at a time, giving senators a chance to truly explore the nominee's qualifications. That's gone by the wayside, too. In January 2003, Hatch scheduled three such nominees in one panel.
And Committee Rule IV says that in order for a nomination to get a committee vote, there has to be support by at least one member of each party. Hatch has ignored this one as well.
Senate Democrats on the Judiciary Committee, after wiping off the tire tracks from their faces, had no option but to filibuster Bush's worst, most ideologically rigid choices. Hatch had closed off all means of collegial input.
It is worth remembering that because of the Senate's configuration, a minority of its members may actually represent a majority of Americans - one reason the body has traditionally granted some control to senators who are technically in the minority. But those courtesies have now been gutted and may soon be eliminated.
Due to term limits, Hatch has been replaced as the committee's chair by Republican Arlen Specter of Pennsylvania. Specter is an honest broker and a breath of integrity after Hatch. But Specter was crippled by a bruising fight to succeed Hatch, and a Senate staffer says he won't yet commit to resurrecting the rules that Hatch squashed. We'll have to see how he walks this tightrope between his own party's extreme right wing and the Democrats on the committee.
But if Specter fails and the nuclear option is exploded, there's one man to blame: the smarmy senator from Utah.