Senate GOP set to go 'nuclear' over judges
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By CHUCK LINDELL The Cox News Service - Published: November 28, 2004
WASHINGTON — Senate Republicans, boldly confident after their Nov. 2 electoral success, are preparing to end months of frustrating delays over President Bush's judicial picks by hitting Democrats with Republican's ultimate legislative weapon.
But the Republican threat to neuter long-cherished filibuster rules by steamrolling Democrats is risky — so potentially destructive that Capitol Hill calls it the "nuclear option." Democratic retaliation would be swift and long-lasting, raising the prospect of escalating clashes in a body that prides itself on gentility and cool judgment.
Even so, Republican leaders are signaling their intent to go nuclear in word and deed.
"We're going to use every tool we possibly can," said Senate Majority Leader Bill Frist, R-Tenn., who also unveiled a kinder, gentler phrase for the potential rules change: the "constitutional option."
"Republicans are loaded for bear, spoiling for a confrontation with Senate Democrats on judicial appointments," said Norm Ornstein, an expert on Congress for the conservative-leaning American Enterprise Institute. "For a lot of conservatives, this has really become an issue that leaves them passionate."
Democrats, with a new leader after the election defeat of Majority Leader Tom Daschle, D-S.D., have yet to form a filibuster strategy for the 109th Congress, which convenes in January. But early indications show continued passion for blocking nominees considered too conservative, including Texas Supreme Court Justice Priscilla Owen.
"I think they would be making a huge mistake to try to mess with the rules," said Sen. Harry Reid, D-Nev., who will replace Daschle as minority leader. "My position is this: 203 federal judges were approved — 203. Ten were turned down. Does that require any kind of a nuclear option? I would certainly think not."
Entrenchment by both sides has Ornstein expecting a confrontation exploding in the Senate, especially when two powerful undercurrents are added to the mix — a likely Supreme Court nomination next year, and jockeying for the 2008 presidential primaries.
John Pitney Jr., author of "The Art of Political Warfare," notes that a large fraction of senators have run for president or are considering a bid, including Frist, who would need a victory on judges to prove his effectiveness to likely Republican voters.
Because all appointments must be resubmitted when a new Congress convenes, the first move will be up to Bush.
Based on the president's track record, Ornstein expects to see most of the 10 filibustered judges renominated to the circuit courts of appeal — one step below the Supreme Court. New nominees also will be scrutinized.
"He can up the ante here or reduce the temperature, which will make a difference in terms of the prominence of the issue," Ornstein said. "I think it's going to be big because I have a hard time imagining Bush not pushing the envelope on these nominees."
Even renominated judges must begin the process anew, sitting through grueling hearings before the Judiciary Committee, receiving approval from the panel's Republican majority, then waiting to see whether if Democrats filibuster on the Senate floor. If they do, Republicans likely will counter with two measures before considering the nuclear option.
One would mandate a timetable for judicial nominations — probably 30 days to hold a hearing, followed by 30-day deadlines for a committee vote and a floor vote.
The second gradually would reduce the number of senators necessary to halt a filibuster with each successive vote, from the current 60-vote threshold to 57, then 54, then a simple majority of 51.
Both options were introduced last Congress as resolutions, but Republicans chose not to press forward. Next Congress, however, they'll have a stronger majority with 55 seats, up from 51, improving their odds of success but still not enough to stop Democrats if they choose to filibuster the resolutions.
The nuclear option would be a last resort if other measures fail, said Sen. John Cornyn, R-Texas, who will likely play a central role in the debate as a member of the Judiciary Committee and chairman of the Constitution subcommittee.
Cornyn argues that judicial filibusters unconstitutionally require a 60-vote supermajority to approve nominees, not the simple majority mandated in the Constitution.
"Democrats must stop not only for the good of the Senate but out of respect to the president, who received almost 60 million votes on November 2, and out of respect for the Constitution itself," Cornyn said. "No group of senators has the right, no minority has the right to tyrannize the majority of the Senate."
The nuclear option would begin with Frist taking the Senate floor to seek a ruling from the presiding officer, likely to be Vice President Dick Cheney in his role as Senate president, to determine whether judicial filibusters violate the Constitution.
Cheney's affirmative response would initiate a vote on changing the filibuster rule which also would be subject to a filibuster unless Cheney over- rules the Senate parliamentarian on whether normal debate rules apply. Then, only 51 votes would be needed for approval.
Another option includes changing Senate guidelines to disallow judicial filibusters, which also would require the Senate president to declare that normal filibuster rules do not apply, so 51 votes could prevail. Changing Senate rules should occur early in the session to gain legitimacy, some Republicans say, making this option potentially less appealing.
Either way, it would be pure power politics, leaving Democrats unable to respond. Other Senate rules, however, would give the minority party plenty of opportunity to express its anger in the months, and years, to follow.
The Senate operates on "unanimous consent," meaning that nothing moves forward without approval of all 100 senators, except when party leaders negotiate specific agreements. In effect, each senator has the power to halt or delay movement on bills, resolutions and nominees.
"You'll get Democrats denying unanimous consent on a great number of things," Ornstein said. "They'll pick and choose those places, so there's a price to be paid."
Republicans said they think that voters would turn against Democrats as obstructionist, but those concerned with the breakdown of comity in Congress are watching the unfolding drama with trepidation.
"The use of the nuclear option would make history, and not very happy history," Pitney said. "As John McCain (R-Ariz.) has already pointed out, someday the Republicans will be in the minority again, and they wouldn't be too happy if Democrats exercised the nuclear option on them."
It's too early to tell whether Republicans are trotting out the nuclear option as a bargaining tactic, perhaps to persuade Democrats to release several nominees from their filibuster. It also is unclear whether enough old guard Republicans would join the effort, but Frist improved his odds with at least one longtime senator.
Sen. Arlen Specter, R-Pa., fighting to become the next Judiciary Committee chairman against vocal opposition from conservative groups, issued a Nov. 18 letter promising full support for Bush's judicial nominees.
Opposition to Specter had raged over his postelection comments that appeared to warn Bush against naming anti-abortion judges. The letter, capping a long week of television appearances and private meetings with senators, included an acknowledgement that changing filibuster rules might become necessary.
Only then did Frist embrace Specter's bid for chairman.
Perhaps more telling of the political climate was a joint statement later issued by Cornyn and Sen. Kay Bailey Hutchison, R-Texas, that dispensed with the walking-on-eggshells approach that senators typically take when discussing a colleague.
"We appreciate Sen. Specter's commitment, and we intend to hold him to it," the Texans said of the 24-year senator. "We are determined to end this (filibuster) practice and return the Senate to its traditional roots."
Chuck Lindell writes for the Austin American-Statesman. E-mail: clindell(at)coxnews.com
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NYT-11-27-04 2017EST
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