Bench Memos

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The “Frist Operation” is the “Byrd Option”


The lefties are furiously linking to this column by Norman Ornstein of AEI, trying to demonstrate the radical nature of the operation contemplated by Dr. Frist and the Republicans to restore the 214-year tradition of voting up-or-down on judicial nominees who have majority support.

Wrong. The facts: Senate procedures and practices can be set either by amending the Standing Rules of the Senate or by establishing parliamentary precedent. Amending the Standing Rules takes a simple majority vote, but such amendments can themselves be filibustered. So the same 60 votes needed to break the filibusters of President Bush’s judicial nominees would be required to amend the Standing Rules.

But Senate precedent (which is really at issue here: affirming and restoring the precedent of voting on judges with majority support) is properly established with 51 votes on a parliamentary ruling that cannot be filibustered. Such precedents can be consistent with, alter, or even override the Standing Rules.

Here’s how it would work in this case: Majority Leader Frist raises a parliamentary “point of order” that enough time has transpired debating the nomination of Justice Owen and that further debate would be “dilatory.” The chairman (usually whatever junior Republican Senator is rotating in the duty of sitting in the chair, but possibly Vice President Cheney, in his constitutional role as President of the Senate) upholds the point of order.

The Democrats appeal the ruling of the Chair. Republicans move to “table” the appeal. If 51 Republicans vote to table, a precedent is set for voting on judicial nominees. An up-or-down vote is then held on Justice Owen, and after a full debate on other nominees, a vote is taken on whether to confirm each of them, as well. The precedent applies to all nominees in the future, regardless of what party controls the White House and the Senate, unless a Senate majority changes it again.

This method of setting precedents by parliamentary procedure and majority vote is not new: it has been invoked by Senator Robert Byrd four times — in 1977, 1979, 1980, and 1987, as detailed in a Senate Republican Policy Committee policy paper.

Ornstein suggests that codifying the longstanding tradition of voting on judges, and leaving untouched the separate tradition of allowing filibusters of legislation, will somehow make it “easy and tempting to erase future filibusters on executive nominations and bills. Make no mistake about that.”

Actually, Norm, that is a mistake. Republicans are the ones who in the past have opposed “erasing” the real filibuster tradition on legislation. Democrats (including nine Democrats now sanctimoniously advocating the filibuster of President Bush’s nominees) have favored it. And if you think that a President Hillary Clinton and a Democrat-controlled Senate would hesitate for one second to do away with the legislative filibuster if it suited their purposes — irrespective of whether Republicans in 2005 did or did not clarify the precedent of voting on judges — think again.


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