Everything you wanted to know about the "nuclear option"
If the Republicans are as good as their word, it's going to be much uglier than you think.
To hear the partisans on either side describe it, the coming debate over Bill Frist's plan to kill the filibuster is a thing of apocalyptic proportions. Focus on the Family's James Dobson says the ground in Washington is "almost too hot to walk on" right now, that the faithful are in their "foxholes" and the "bullets are flying overhead." Democratic National Committee chairman Howard Dean says Republicans are fixing to "blow up 200 years of Senate history" just because they're not getting their way on a handful of "radical" judicial nominees. On Capitol Hill, the threat of the "nuclear option" has created a sort of political ground zero, and activists on both sides believe that the way this thing plays out will control the shape of the federal judiciary -- and with it, the interpretation of the U.S. Constitution -- for decades to come.
Out there in America, it's a different story. The latest Gallup Poll reveals that only 35 percent of the country admits to following the filibuster fight closely -- more than will fess up to watching the Michael Jackson trial closely, but a little fewer than the percentage who claimed to be paying attention to the situation in Kosovo in 1999.
So if you haven't been giving your undivided attention to Priscilla Owen, Abe Fortas -- he's dead, but he plays into this -- and the intricacies of Senate Rule XXII, you can feel proud that you're right in the middle of the American mainstream. But now it's time to pay attention. A vote on Frist's "nuclear option" may come as early as next week, and we're here to help you get up to speed.
OK, let's begin at the beginning. What's the "nuclear option"?
It's Frist's plan to change the Standing Rules of the Senate in order to prohibit Democrats from using the filibuster to block votes on Bush's judicial nominees. Under the current rules, senators in the minority can indefinitely delay a floor vote on judges -- or on just about anything else, for that matter -- by engaging in extended debate.
The Senate's rules have allowed unlimited debate, or filibusters, since 1806, when senators dropped a rule that allowed a majority of the Senate to put an end to discussion and call for a vote. For the next 111 years, there was no way to stop a filibuster once it had started. But in 1917, when filibusters were blocking Woodrow Wilson's plans for World War I, the Senate adopted Rule XXII, which allowed senators to end a filibuster by a two-thirds vote on a motion to cut off debate -- a procedure called "cloture." In 1975, the Senate amended Rule XXII so that cloture required, in most cases, the vote of not two-thirds but rather three-fifths of the senators. In today's 50-state, 100-member Senate, that means it takes 60 rather than 67 senators to put an end to most filibusters.
With the nuclear option, Frist and his supporters would effectively change that rule so that filibusters on judicial nominees could be cut off by a simple majority vote.
Why is it called the "nuclear option"?
The Republicans don't call it the "nuclear option" -- well, at least they try not to call it that anymore. Trent Lott, who is a Republican if there ever was one, was the first to apply the term to the GOP plan, a recognition that killing the filibuster would be an explosive move in the Senate -- a body that has always prided itself as a place that cools the passions of the House of Representatives and keeps an eye out for the rights of the minority. The name stuck, and Republicans used it frequently.
But at some point along the line, the usually masterful GOP message mavens figured out that a "nuclear" option didn't sound very appealing. So Frist began correcting reporters who used the term, urging them to use the more palatable "constitutional option" instead.
The tactic has worked. As Media Matters has noted, reporters now frequently say that the "nuclear option" is what "Democrats call" the attempt to kill off the filibuster. And NBC's Chip Reid got himself so spun around the other day that he said that the "nuclear option" refers to the steps Democrats might take to retaliate if Republicans kill the filibuster. Frist spins things a different way still: He says the "nuclear option" is what the Democrats "did to me last year when they changed the precedent" on the handling of judicial nominees.
What did the Democrats do to Bill Frist?
Frist is upset that Democrats have used the filibuster to block a handful of Bush's judicial nominees. Democrats have allowed 205 of Bush's judicial nominees to be confirmed, but they have used the filibuster -- or, more accurately, the threat of the filibuster -- to prevent floor votes on 10 others. Bush offered all 10 of the nominees who were stalled in the last session of Congress the chance to be nominated again. Seven accepted, Bush renominated them, and Democrats have indicated that, except as some kind of compromise on the nuclear option, they'll block them again this session.
Democrats have allowed 205 to be confirmed and now are blocking only seven? That's not so bad, is it?
No, it isn't. According to an analysis by the nonpartisan Congressional Research Service, Bill Clinton nominated 443 judges to U.S. district and appellate courts, and only 372 of those nominees were confirmed. George H.W. Bush got only 192 of his 242 nominees confirmed. Ronald Reagan went 375 for 403.
President Bush's numbers look pretty good by comparison. But the Republicans say those are the wrong numbers to consider, that one should consider the confirmation rate only for the judges that Bush has nominated to the U.S. Court of Appeals, the level of the federal judiciary one step above the district courts and one step below the Supreme Court.
So let's look at those numbers. Bush has nominated 52 judges to appellate courts, and the Senate has confirmed 35 of them. (Democrats used the filibuster or the threat of filibuster to block 10, and seven other nominations were returned to the White House for other reasons.) How does that compare with, say, Clinton's record? It's almost identical. In his second term, Clinton nominated 51 appellate court judges. The Republican-controlled Senate confirmed 35 of them. Overall, the Congressional Research Service says that Clinton went 65 for 91 on nominees to appellate courts -- a .714 batting average that's not a whole lot different from Bush's .673. And Bush would actually out-hit Clinton if Frist and other Republicans accepted a nuclear option-averting compromise plan now under discussion on Capitol Hill.
But there must be something different in the way that the Democrats are blocking Bush's nominees, right? The Republicans say that what the Democrats are doing is "unprecedented."
Oh, yes they do. Just the other day on Fox News, Utah Sen. Orrin Hatch, the former chairman of the Senate Judiciary Committee, proclaimed: "We've never had a filibuster of judges in the history of this country." In a myth vs. fact sheet, the Republican National Committee says that "having to overcome a filibuster (or obtaining 60 votes) on judicial nominees is unprecedented."
But that's not a fact. In 1968, Republicans led a filibuster against Lyndon Johnson's nomination of Abe Fortas as chief justice. And that isn't the only Republican attempt to filibuster a judicial nominee in recent history. During the Clinton years, the Congressional Research Service says, Democrats were forced to bring cloture motions on six judicial nominees. While the existence of a cloture motion doesn't always mean that a filibuster is in effect, in at least some instances it has meant just that: In 2000, Frist himself voted to support a filibuster against Richard Paez, Clinton's nominee to the U.S. Court of Appeals for the Ninth Circuit.
What do Frist and the GOP say about that?
They've become more and more specific about what it is they're calling "unprecedented." Now, instead of saying that filibusters are unprecedented, Frist says that a judicial nominee "with majority support" has "never been denied" an up-or-down vote. That formulation is closer to accurate, but it's still not quite there. Paez had "majority support," but Frist and other Republicans tried to filibuster his confirmation anyway.
What gives? Frist would say that the Republicans didn't succeed in blocking the Paez nomination, so their efforts shouldn't count against them. It's a sin to succeed in blocking a nomination by filibuster, Republicans say. But trying to block a nomination by filibuster -- as Republicans did repeatedly during the Clinton years? That doesn't count, and to say otherwise would be, in the words of the conservative Committee for Justice, "Orwellian."
Isn't that a little like an attempted murderer lording his morality over a murderer who actually succeeds?
You said it, not me.
Do all Senate Republicans go in for this way of thinking?
Not all of them. Arizona Sen. John McCain and Rhode Island Sen. Lincoln Chafee have already said that they'll vote against the nuclear option, and there are at least six other Republicans who could go either way. Over the weekend, Nebraska Sen. Chuck Hagel seemed to be saying he wouldn't go nuclear, explaining that Republicans' "hands aren't clean" on judicial nominees, either.
Does that mean Republicans didn't always provide up-or-down votes on Clinton's judicial nominees?
That's right, they didn't. As Hagel noted, Republicans prevented approximately 60 of Clinton's judicial nominees from ever getting a hearing from the Senate Judiciary Committee. They didn't have to use filibusters to block floor votes on the nominees because they never let them get that far in the first place.
Why can't Democrats do the same thing to Bush's nominees?
In large part because Hatch changed the rules of the Judiciary Committee. When Clinton was president and Hatch controlled the committee, a judicial nomination could be put on permanent hold if a single senator from the nominee's home state objected to its going forward. But in 2003, Hatch changed the rules to make it harder for a single Democrat to block a Bush nominee. Under Hatch's new formulation, "blue slips" couldn't stop a nomination unless both senators from the nominee's home state submitted one -- and he wavered on whether he should consider himself bound by the "blue slips" at all.
Now Arlen Specter is the chairman of the Senate Judiciary Committee, and he has started to move some of the stalled nominees through the committee so that they'll be teed up for floor votes -- or at least for filibusters over floor votes. And unless somebody blinks before then, that means the nuclear option could come to a head as early as next week.
Don't ever change Marbles!
