Amid all the talk of Republicans using the so-called “nuclear option” to end the Democratic filibuster of the president’s judicial nominees, there’s been little discussion of perhaps the key question in the matter: How many Republicans actually support that strategy? “That’s a state secret,” says one Republican. “It’s fair to say we’ve been in a constant state of checking for two or three months.”
The answer is critical, since Democrats — with the possible exception of Georgia’s Zell Miller — will undoubtedly oppose the plan, which calls for Republicans to use a parliamentary maneuver to end the filibusters of Miguel Estrada and Priscilla Owen by a simple majority vote, instead of the 60 required by the Senate’s rules. United Democratic opposition means the nuclear option cannot be attempted unless it has the nearly unanimous support of the Senate’s 51 Republicans.
Even if the level of a Republican support is a “state secret,” it is clear that there is no unanimity of opinion yet. Rather, Republican senators fall into three categories. Some are ready to try the nuclear option now. Some would be ready if Democrats filibuster more Bush nominees. And some would go forward only if Democrats filibuster a Bush Supreme Court nominee.
As for what is happening now, it would be more accurate to say that the GOP is laying the groundwork for use of the nuclear option at some point in the future.
Before going nuclear, Republicans must first be able to say that they tried more moderate solutions. They tried to persuade recalcitrant Democrats into allowing full-Senate votes on Estrada and Owen. Then they tried multiple cloture votes, each time hoping a few Democrats would come around. Then they made the Frist/Miller proposal, which would change Senate rules to make filibusters of judicial nominations more difficult. Only then did they turn to more aggressive measures.
The next step is up to Democrats. If they choose to filibuster more nominees, they will strengthen the Republican nuclear argument and bring more GOP senators into the group supporting the nuclear option.
Will there be more filibusters? Last Sunday, Senate Minority Leader Tom Daschle attempted to downplay the possibility when he told NBC’s Tim Russert that the Estrada and Owen nominations are “exceptions to the rule.” Daschle said there are “extreme cases when extreme judges deserve no more than a cloture vote, and these two cases fit that category.”
The problem is that, by Democratic standards, there are more “extreme” nominees to come. Will Democrats filibuster appeals court nominees Charles Pickering, Bill Pryor, and Carolyn Kuhl? Or even the lower, district-court nominee Leon Holmes? By the standards Democrats have established in the Estrada and Owen cases, it is extremely difficult to see why those nominees, and perhaps others, would not be filibustered.
“When it was Estrada alone [the nuclear option] was impossible,” says one Republican. “When Owen happened, it gained pivotal support. If there is a third or a fourth filibuster, if it becomes generalized, then the nuclear option becomes very, very viable.”
Still, there are some Republicans who, at least at this point, would not support the option unless Democrats go even farther. “If they did it to a Supreme Court nominee, that would be the final straw,” says the Republican.
The important thing to remember at the moment is that even if Republicans decide to attempt the nuclear option, they are not yet in a position to do it. Even its proponents view any action now as premature. “No one believes that the predicates have been laid for it to be done now,” says the Republican.
So for now, the groundwork goes on. It began after last year’s elections when Republicans, listening intently as liberal interest groups pressured Democrats to filibuster nominees, began to map a strategy in response. The groundwork continued last week, when Texas Republican Sen. John Cornyn held a hearing on the Senate’s rules regarding judicial nominations. It will continue next month, when Senate Rules Committee chairman Trent Lott holds a hearing on the issue. Then there will be even more talking.
All the while, Republicans will wait for Democrats to act. By the time Lott’s hearing is over, it is possible that Democrats will be filibustering Holmes — a filibuster of a district court nominee would be unprecedented — and perhaps Kuhl. By then, more Republicans will support going nuclear, and it is even possible that those GOP senators who now say they would act only in the case of a Supreme Court filibuster will reconsider their position in the face of a long line of Democratic filibusters.
At that point, the nuclear option would be a very real possibility. Only it will no longer be known as the nuclear option. If Democrats filibuster more and more nominees, Republicans will argue that it is the filibuster strategy that is the true nuclear option. Therefore, a bold Republican attempt to break through the filibusters will be more rightly known as a nuclear response, which is a much different thing.
There are other possibilities as well. It is possible that Democrats might forego more filibusters if they believe they will set off a nuclear response. And it is also possible that if Democrats do attempt more filibusters, Republicans, and in particular President Bush, will be able to capitalize politically on their actions. The GOP might then refrain from the nuclear response and instead focus its efforts on defeating vulnerable Democratic senatorial candidates in 2004. Whatever happens, Republicans are increasingly beginning to believe they will ultimately be on the winning side of the issue.