Fighting Filibusters
Frist shouldn't use the nuclear option wantonly.


The May 13 edition of The Hill reports that there are again Senate rumblings about the so-called nuclear option to end the unprecedented, unconstitutional Democratic filibusters of judicial nominees.

But before anyone gets excited, let’s remember that the key question is whether the GOP has the 51 votes it needs to close the deal. The danger is that under Senate practice, a failed effort risks locking in the judicial filibusters forever.

If the GOP does not have the votes, better it wait until the next Congress and take the crisis to the American people at the polls this November, starting with a steady and substantive stream of Senate debates. We don’t want just a series of cheap cloture votes. It is the vote in November that matters, even if this issue only moves the small margins that secure Republican wins.

Exit polling in the last Senate election shows that voters who were motivated by the judiciary issue, although a small margin, represented a number larger than the margin of Republican victory in three states. That’s enough to return the Senate to GOP control. And the White House consistently tells us that, in the president’s speeches, the mention of his embattled judges garners the biggest applause lines.

GOP leadership has to keep its eye on this ball. While other issues may discourage voter turnout in November, the judge issue is guaranteed to get Republican voters to the polls in the fall election.


First, some definitions. The nuclear solution is not just one option but several. The piece by Alex Bolton in The Hill does a fair job describing the main options, but it does not describe all of them. The “constitutional option” is just one of the “nuclear options” and is an inferior choice despite its rhetorical appeal.

Rather than refer to a single option as Democrats do, it is better to refer to the “51-vote solutions”–made up of several separate options including the constitutional option–because all have the same end: 51 senators will restore every senator’s right and duty to give Advice and Consent on judicial nominations through an honest, up-or-down vote–with a democratic majority determining the outcome, as the Constitution provides and the framers intended.

GOP leadership first seriously discussed the 51-vote solution in the Republican cloakroom during the floor debate over Miguel Estrada. Excited, leadership staff kicked into high gear studying the possibilities. Trent Lott (R., Miss.) dubbed the solution “nuclear.” Democrats like the term because it conveys the consequence they threaten: They will shut down the Senate’s business and the Leader’s agenda will be dead.

Of course, the Democratic threat looks less menacing this year given that the Democrats’ election-year shut-down came early. It makes sense that Senate Republicans are rumbling. For weeks they have been waiting for a deal with Democrats. But Tom Daschle (D., S.D.) has refused to work out a global agreement with the White House to break the logjam on blocked judicial and executive nominations, and on a host of legislative matters. So it is natural for Republicans Senators to beat their breasts. Enter Orrin Hatch (R., Utah).


The Hill reports that Hatch is meeting with leaders of outside groups to build grassroots support for the constitutional option. In fact, he has tried to rally a few grasstops (grassroot leaders), but his reception has been cold–for good reason.

Hatch is not trusted and is unpopular with the folks most necessary for Frist to move the Senate to action. As a result of his surrender to Democrats and apparent betrayal in the Memogate-less scandal, a leading conservative organization recently pulled a once-sought-after letter of support signed by him from its solicitation mailing to donors. A letter from Hatch, they concluded, would not get a positive response. Conservative event planners wanting a Judiciary Committee presence have even turned to inviting Arlen Specter, the likely next chairman.

Hatch is regarded as a lame duck, desperate to repair the harm he has done to his reputation in the past few months. Grasstops know that the White House and Senate leaders no longer take Hatch seriously. In meetings with fellow senators, he is, as someone else put it, “underwhelming.”

In the aftermath of Arlen Specter’s near defeat in the Pennsylvania primary by challenger Rep. Pat Toomey, conservatives in Washington have begun looking at Hatch as a good target in 2006 for a primary challenge in far more conservative Utah. Like Specter, Hatch clears general elections, but has in the past thinly fended off Republican challengers.

Grassroots leaders are also angry at Hatch for a vain, still unsuccessful attempt to bargain with Michigan and Maryland Democrats on pending nominees. Hatch is holding up as many Bush circuit judges in committee as Tom Daschle is on the Senate floor. The mere idea of seeking deals rankles many conservatives.

Washington grasstops also know that Hatch’s last bit of breast-beating advice backfired. Democrats and editorialists have taken the president to task for the recess appointments of Charles Pickering and Bill Pryor. The truth is that that was an idea pushed on the White House by Hatch. Moments after the last failed Pickering vote, Hatch rushed to the Republican cloak room to place a call to Al Gonzalez to demand a recess appointment. The White House was resistant until a December meeting, when Senate leaders followed Hatch’s lead and forced the matter.

From the Senate point of view–the long view–it was a shortsighted solution. It was good for the president. A president always looks good when he exercises power. It was great for Pickering and fine for Pryor. The move was certainly constitutional. But it was a strategic loser, distracting from the GOP’s message of Democratic obstruction, and a tactical disaster, allowing Daschle to make Republicans look like aggressors and giving him the excuse he needed to shut down judicial confirmations early.

Now Senate leaders will need to be especially careful, if only because Hatch is not playing to win, and Frist must.

Hatch made that clear. On the eve of the 40-hour grand debate last November, Hatch quietly tried to organize a rump to get Frist to let him push the nuclear button. Even while we frenziedly planned for the historic debate, we had to undo the harm that Hatch was doing.

As now, Hatch called grasstops into his office, told them that Frist was “feckless” for not letting him pursue the nuclear option, and asked them to pressure Frist’s office. Yet we had assured Hatch that Frist did not have the votes to win. Hatch said he didn’t care. It was clear that he was only looking to grandstand.

If Frist plays this game, he must play to win. To win he must keep his eye on the ball.

Manuel Miranda is former counsel to majority Leader Frist and judiciary committee chairman Orrin Hatch. The liberal credits him as being the architect of the “nuclear” option.