Nuclear Option Fizzling on Launchpad

As Congress left Washington for its President's Day week-long recess, Senate Majority Leader Bill Frist appeared not to have corralled enough Republican votes to carry out his often repeated threat to use a parliamentary power-play called the "nuclear option" to extinguish Democrats' filibusters of judicial nominations.

The "nuclear option" covers a variety of stratagems to use a simple 51-49 majority vote to force a floor up-or-down vote on a nominee, rather than the 60 votes prescribed by Senate Rule 22 to end floor debate, or the 67 votes required to change the rules themselves.

Since netting four new Republicans in the November elections, Frist has frequently insisted he had the votes to prevail if he chose to go this route. The White House signaled a similar conclusion, when on February 11 the President resubmitted the names of seven appellate nominees who had been blocked in the 108th Congress by Democratic filibusters. But so far Frist appears unable to keep these seven, and other nominees who provoke united Democratic opposition, from encountering the same fate in the 109th.

On February 9, Frist told the Washington Times that he was "confident" he had his 51 votes, but then fudged that he "can't say that with certainty because I don't know exactly what it will be..." On February 16, CQ Online reported that Senators Olympia Snowe and Susan Collins of Maine, Lincoln Chafee of Rhode Island, John McCain of Arizona, Gordon Smith of Oregon, John Warner of Virginia, Chuck Hagel of Nebraska, Pete Domenici of New Mexico, and George Voinovich of Ohio remain opposed or uncommitted. Others, such as John Sununu of New Hampshire, Ted Stevens of Alaska, and most important, Senate Judiciary Committee Chairman Arlen Specter of Pennsylvania, have at other times been mentioned as unwilling to give Frist their support, at least for the time being. Soon after Frist's Times interview was published, his deputy, GOP Conference Chair Rick Santorum of Pennsylvania, lowered expectations by indicating that judicial nominations would probably not be scheduled for floor action until later in the Spring.

Conservative pundits reacted quickly. On February 22, National Review Online columnist Byron York suggested that the Republican leadershp's strategy was to goad the Democrats into "strident" obstructionism in hopes of persuading wavering Republicans to unite behind the President's slate.

Former Reagan Justice Department official Bruce Fein was more pessimistic and less charitable--concluding in a February 22 Washington Times op. ed. that "President George W. Bush's judicial agenda is sinking." Fein pinned the blame on "about 10 Republicans [who] are loath to risk the threatened venom of their Democrat colleagues," and on the President himself for refusing to "expend political capital to crush Democratic filibustering." Later that day, in an interview with the Washington Post editorial board reported in the next day's Post, Senator Specter delivered what would appear to be the coup de grace. For two months Specter had prostrated himself before right-wing pressure groups and colleagues to save his Judiciary Committee chairmanship; but now he felt emboldened to proclaim: "If we go to the nuclear option... the Senate will be in turmoil and the Judiciary Committee will be hell."

Less widely reported but perhaps of some interest to the lawyers in this audience was a related development this week--the surfacing of liberal evaluations of a January 2005 Harvard Journal of Law & Public Policy article defending nuclear option strategies to end filibusters. Co-authored by Martin Gold, recently floor manager for Frist and earlier for former Majority Leader Howard Baker, this piece was included in notebooks provided by Frist to Republican Senators as 65 footnoted pages of scholarly reassurance that precedent exists for pushing aside governing Senate supermajority requirements. But on examination, Gold's article turned out to prove just the opposite: every pertinent Senate rule change on floor procedures has been accomplished within and in accordance with the rules prescribing procedures for amending the rules--not by some extralegal power-play akin to the nuclear option. Gold and his co-author expressly acknowledge that "Each time the Senate rules have been amended, the body has followed the rules-change procedures set forth in the rules themselves."

On February 22, People for the American Way posted an excellent indepth critique of the Gold analysis. Also see the original article from Martin Gold and Dimple Gupta: The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Over Come the Filibuster.

Of course, the manifest weakness of the Gold-Gupta defense may or may not itself bear responsibility for the caution of independent-thinking Republican Senators. However that may be, the nuclear option strategy is not now playing the role hard-line Republicans envisioned for it--namely, to free White House lawyers to recommend fire-breathing conservative Supreme Court candidates to President Bush unconstrained by the threat of a possible Senate filibuster. By the same token, conservative activists can be counted on to intensify pressure on all Republicans, and moderate Democrats as well. Attitudes and alignments on this issue are endemically fluid, and could shift back in Frist's favor at any point.