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Nuclear option

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This article is part of the Center for Media & Democracy's focus on the fallout of nuclear "spin."

The nuclear option is a parliamentary rule which "relates to the possiblity that Vice President Cheney will make a 'ruling from the chair' with regard to changing the cloture rule reducing the now required 60 votes to end a filibuster to a simple majority." In effect, the "nuclear option" could be used to end any debate on the Senate floor. [1]

Quotes

"Any judicial nominee willing to sacrifice the constitution and the traditions and rules of the U.S. Senate in order to be confirmed is unqualified for the bench." --Glenn Smith, DriveDemocracy.org, May 18, 2005.

Compromise

A bipartisan group of fourteen senators, seven Democrats and seven Republicans, reached an agreement on May 23, 2005, that "three nominees for appellate courts stalled by Democratic filibusters will go forward and two others will remain subject to filibuster. ... Under the deal, the senators will allow three of Bush's controversial nominees to come to a vote: Priscilla Owen, Janice Rogers Brown and William Pryor." [2]

"The group made no commitment to vote for or against a filibuster on two nominees, William Myers and Henry Saad." [3]

"The group's members also agreed that they would oppose attempts to filibuster future judicial nominees except under 'extraordinary circumstances'," which were not explained. [4]

The group of fourteen were:

Note that many of the "fourteen" are members of the Senate Centrist Coalition and some Democrats are also members of the Third Way Senate Advisory Board and the Senate New Democrat Coalition.

Compromise: Strategic "Success"

The Washington Post reported May 24, 2005, that "Every Monday morning for months, veteran Washington lawyer C. Boyden Gray has plotted strategy via a conference call with the heads of groups that want to ease the confirmation of President Bush's judicial nominees. He has also spent many hours raising millions of dollars for the cause. ... The eccentric Gray stood at the center of what had threatened to become a historic confrontation between the political parties." [5]

Compromise: Disappointment

In a May 23, 2005, press release, Senator Russell D. Feingold (D-WI) said: "This is not a good deal for the U.S. Senate or for the American people. Democrats should have stood together firmly against the bullying tactics of the Republican leadership abusing their power as they control both houses of Congress and the White House. Confirming unacceptable judicial nominations is simply a green light for the Bush administration to send more nominees who lack the judicial temperament or record to serve in these lifetime positions. I value the many traditions of the Senate, including the tradition of bipartisanship to forge consensus. I do not, however, value threatening to disregard an important Senate tradition, like occasional unlimited debate, when necessary. I respect all my colleagues very much who thought to end this playground squabble over judges, but I am disappointed in this deal." [6]

"Nuclear" vs "Constitutional"

  • Anthony Hecht of Slapnose wrote April 25, 2005, in his article "Bamboozled" that
Josh Marshall is keeping good tabs on all the media outlets that have picked up this "the Democrats call it the 'nuclear option'" bullshit. This morning on NPR they said it. It's everywhere. It's really pissing me off.
These media companies know damn well that the term "nuclear option" is not an invention of the Democrats, nor was it, until recently, used only by Democrats. In fact, the term was coined by former majority leader Trent Lott.
The Republican noise machine has so successfully muddied the waters on this that now some people are referring to what the Democrats would do in response to the nuclear option as "the nuclear option."
It's really sad when every media outlet from coast to coast just picks up this garbage without question. The Republicans invented the term, they're the ones threatening to "go nuclear," but now this violent, destructive imagery has been successfully pinned entirely on the opposition. It's a magnificent lie. Conservatives did some polls, discovered that the term elicited a negative response, so they switched to "the constitutional option." In a world that made any sense, a move so pathetically transparent would be highlighted by the media. But this is not that world. [7]
  • "As several weblogs have noted, the term nuclear option -- referring to the Republican-proposed Senate rule change that would prohibit filibusters of judicial nominations -- was coined by one of its leading advocates, Sen. Trent Lott (R-MS). But since Republican strategists judged the term nuclear option to be a liability, they have urged Senate Republicans to adopt the term constitutional option. Many in the media have complied with the Senate Republicans' shift in terminology and repeated their attribution of the term nuclear option to the Democrats." Media Matters for America.

Clinton Era = Constitutional "Checks and Balances"

  • "...the Senate is a -- is not a majoritarian institution like the House of Representatives is. It is a deliberative body and it's got a number of checks and balances built into our government. This is one of those checks, in which a majority cannot just sheerly force its will, even if they have a majority of votes in some cases, that's why there are things like filibusters and other things that give minorities in the Senate some power to slow things up, to hold things up, and let things be aired properly."
Source: People for the American Way "writes that in 1998, then-Senior FRC Writer and Analyst Steven Schwalm, appearing on NPR’s 'Talk of the Nation' had this to say about the filibuster against James Hormel, President Clinton’s ambassadorial nominee."

... and the Family Research Council's Filibuster "Flip-Flop"

"MSNBC host Keith Olbermann noted that the Family Research Council (FRC), which is currently campaigning to stop filibusters of President Bush's judicial nominees by Senate Democrats, was quite vocal in the late 1990s in defending the right to filibuster another presidential nominee, James C. Hormel, who was nominated by President Clinton as ambassador to Luxembourg." Source: Media Matters for America, April 26, 2005.

How the "Option" Might Work

Robert Novak illustrated this procedure in his December 20, 2004, Townhall article "Byrd's nuclear option": [8]

"A scenario for an unspecified day in 2005: One of President Bush's judicial nominations is brought to the Senate floor. Majority Leader Bill Frist makes a point of order that only a simple majority is needed for confirmation. The point is upheld by the presiding officer, Vice President Dick Cheney. Democratic Leader Harry Reid challenges the ruling. Frist moves to table Reid's motion, ending debate. The motion is tabled, and the Senate proceeds to confirm the judicial nominee -- all in about 10 minutes."

High-risk Strategy, Possible Blowback

"A looming power play by Senate Republican leaders to clamp down on filibusters against judicial nominees is a high-risk strategy. It could change the balance of power in the Senate, erode the rights of the minority party and backfire against Republicans in the long term.

"The Senate is 'not always going to be Republican,' former Senate Majority Leader Bob Dole, the 1996 GOP presidential candidate, is reminding fellow Republicans. 'Think down the road,' he advises. ..."

"'Someday there will be a liberal Democrat president and a liberal Democrat Congress,' Sen. John McCain, R-Ariz., told MSNBC last week. 'Do we want a bunch of liberal judges approved by the Senate of the United States with 51 votes if Democrats are in the majority?'" New York Times, April 18, 2005.

Putting on the Brakes

The Hill reported April 21, 2005, that "Sen. Rick Santorum (R-Pa.), a leading advocate of the 'nuclear option' to end the Democrats’ filibuster of judicial nominees, is privately arguing for a delay in the face of adverse internal party polls."

Although Republicans are usually willing to release polling numbers that favor the party, current polling numbers details "remain under wraps," as "Santorum and other Senate sources concede that, while a majority of Americans oppose the filibuster, the figures show that most also accept the Democratic message that Republicans are trying to destroy the tradition of debate in the Senate." [9]

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