Will The Gop “Go Nuclear” Over Judges?
Don't bet on it.


Byron York

There’s been a flurry of speculation in the Senate and in conservative circles about a so-called “nuclear option” to break through the current deadlock over judicial nominations. The scenario envisions Republicans using parliamentary maneuvers either to declare the Democratic filibusters of Miguel Estrada and Priscilla Owen unconstitutional, or to decide that Senate rules forbid the minority party from using the filibuster in cases of judicial nominations. In either case, the scenario goes, a simple majority of 51 votes could then be held to uphold the parliamentary ruling. Then, the Senate could move on to a final confirmation vote for both nominees.

While some senators have indeed studied the strategy, sources say there is little or no chance it will be used by the Senate Republican leadership anytime soon. What is more likely is that the GOP will try to introduce a version of a filibuster-breaking plan outlined by Georgia Democratic Sen. Zell Miller.

The Miller proposal is based on an idea put forth in 1995 by Democratic senators Joseph Lieberman and Tom Harkin (which itself was based on still earlier proposals). The plan in effect makes it progressively more difficult for a minority party to stand in the way of the majority’s will. Under the plan, when a filibuster is under way and the majority tries to break it by holding a cloture vote, the first vote would require, as it does today, 60 votes to break the filibuster. But if the first attempt fails, the next cloture vote would require just 57 votes to end debate. If a third cloture vote was needed, 54 votes would be needed to end debate. Finally, a fourth cloture vote would require just 51 votes, a simple majority, to move on to a final confirmation vote. At that point, the majority’s will would prevail.

“This would preserve the Senate tradition,” Miller said in written testimony on Tuesday, “while still giving the minority plenty of time to plead its case without blocking the majority forever.”

The only problem with such a proposal, Republicans concede, is that it would require a change in Senate rules, a move that would run into stiff Democratic resistance. Miller himself notes that in 1995, the Lieberman-Harkin plan won just 19 votes. “I’m enough of a realist to know things haven’t changed that much in eight years and my proposal wouldn’t fare much better today,” Miller said. “But at the very least…I would hope we would consider applying my proposal to judicial nominations.”

Still, it’s likely that Republicans will introduce some version of the Miller plan, even though they know it is unlikely to win early approval. “It’s an argument that has to be rolled out, discussed, you build public attention to it, and then see what happens,” says one Republican.

If the Miller plan fails, GOP leaders will then consider whether to move on to stronger measures, including a stepped-up political campaign against so-called moderate Democrats who have so far supported the Estrada and Owen filibusters. Whether Republicans will ever decide to use the “nuclear option” is not clear.

The strategizing on Capitol Hill comes amid yet another highly visible breakdown in relations between the parties over the judicial issue. This latest breakdown occurred, ironically, at a hearing called to explore ways to resolve the impasse.

The hearing, held Tuesday, was presided over by Texas Republican Sen. John Cornyn, who chairs the Judiciary Subcommittee on the Constitution. Cornyn, a freshman, arrived in the Senate in the midst of the judicial fight; having played no role in old conflicts, and having no scores to settle, he set about looking for ways to end the fighting.

The hearing was the result of that search. Cornyn began the session — entitled “Judicial Nominations, Filibusters, and the Constitution: When a majority is denied its right to consent” — by trying to reach out to Democrats, especially to Wisconsin Sen. Russell Feingold, the ranking member of the subcommittee. “Senator Feingold is an honorable and public-minded person,” Cornyn said in his opening remarks, “and I’m glad that we’ve already developed what I believe to be a good, cooperative, bipartisan relationship.” “I think we agree…that the current judicial confirmation process is broken and something needs to be done,” Cornyn continued, “and the purpose of this hearing is to talk about ideas about what can done.”

For the briefest of moments it appeared as if there might be some real energy behind an effort to find a solution to the confirmation crisis. Then came Feingold’s chance to speak. His message, and that of his fellow Democrats, might be briefly summarized as: Forget it.

To begin with, Feingold didn’t like the name Cornyn had given to the hearing. “Unfortunately, the title of the hearing suggests that it may be intended to turn up the hear rather than cool things down,” Feingold said. “The argument recently advanced on the floor by a number of senators that filibusters of judicial nominees are unconstitutional seems to be part of a campaign of political intimidation launched by supporters of the president’s nominees. If this hearing is a prelude to a floor effort to rewrite the Senate’s rules, or circumvent them through parliamentary tactics, I doubt very much they will succeed, and I am sure they will be me with stiff resistance. The end result could be to take the tensions we feel in this committee and spread them to the floor of the Senate.”

In addition, Feingold said that “those of us who take the Constitution seriously” were dismayed at Republican attempts to end the Democratic filibusters of Estrada and Owen. Feingold conceded that the filibuster was a highly unusual tactic in judicial nominations — “We do admit it’s an extreme step,” he said — but insisted that the real villain in the judicial conflict was the Bush administration. “So far, the White House seems intent on forging ahead with its efforts to push through as many nominees with the most extreme views as possible, in the shortest possible time,” Feingold said. Just as bad, he added, Republicans on the committee have “participated in that strategy by pursuing a ‘take no prisoners’ approach.”

And that, at least from a Democratic standpoint, was the end of any “good, cooperative, bipartisan relationship” that might have existed at the hearing.

In the next hour, Feingold’s sentiments were repeated by Massachusetts Democrat Ted Kennedy, who revived the old Democratic charge that “President Bush has no mandate from the American people to stack the courts with judges who share his agenda.” New York Democrat Charles Schumer, who has proposed that the president solve the confirmation crisis by simply giving up his constitutional responsibility to appoint judges, appeared as a witness, telling the panel, “Yes, we’re sort of in deadlock, but this was not started by Democrats.”

After opening remarks, the hearing moved on to a long round of testimony from six constitutional experts. Much of the discussion focused on the legal basis for the “nuclear option.” Specifically, the experts analyzed Senate Rule 22, which lays out the procedure for ending a filibuster. The rule reads, in relevant part:

At any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question: “Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

The language of the rule, which was adopted in the late 1940s, seems quite clear: It takes 60 votes to end a filibuster. And if the majority tries to change Senate rules, and the minority launches a filibuster to stop that, an even greater majority — 67 votes, if all senators are present and voting — is required to end debate and move forward. At least on its face, Rule 22 is an immovable obstruction to the “nuclear option” solution to the Estrada and Owen filibusters.

In addition, Article I, Section 5 of the Constitution plainly states that the Senate “may determine the rules of its proceedings.” Nevertheless, some Republicans are studying Senate precedents with an eye toward advancing the idea that Rule 22 does not apply to judicial nominations. But as attractive as that idea seems, many Republicans remain skeptical. “If they’re going to do it [break the filibusters] by having the chair say X is really Y,” says one, “that would be parliamentary activism.”

Those in the GOP who oppose such a tactic find themselves in uncomfortable agreement with Schumer, who is the most outspoken opponent of President Bush’s judicial nominees. At the Cornyn hearing, Schumer engaged the legal experts in a furious back-and-forth over the idea of changing Rule 22 or seeking a ruling that it is unconstitutional as applied to judicial nominations.

“I’m totally befuddled by the idea that it is unconstitutional to filibuster a judge but not unconstitutional to filibuster legislation,” Schumer said. “This is taking the result you want and then twisting the legal argument to make it right. It’s the most absurd thing I’ve ever seen, and I think it’s almost a joke.”

Schumer’s position — and that of more than 40 of his fellow Democrats — leaves Republicans with a tough choice. They can either try to devise some parliamentary solution to the filibuster problem — a solution based on shaky grounds at best — or they can decide to escalate the political battle over nominations.

That would undoubtedly involve a high-profile effort by President Bush, both to put pressure on key Democrats in their home states and to nationalize the issue of Democratic obstruction. It would also involve returning the Senate spotlight to the Estrada nomination with a more rigorous effort than the off-and-on debate going on today. It might even involve Republicans forcing Democrats to mount an old-fashioned filibuster, that is, forcing them to talk without end to prevent votes on Estrada and Owen. “If people screwed up their moxie and hauled in the cots, it could be done,” says one Republican.

But not easily. And it is entirely possible that none of those measures will produce a victory before the 2004 elections. But rather than rely on parliamentary sleight-of-hand, many Republicans believe the party must exercise raw political power to win the battle over judicial nominations. At the Cornyn hearing, Democrats made clear that they will not be persuaded to stop their filibuster. The question is whether President Bush and Senate Republicans can put enough political pressure on them to force the issue.