16 Mar 2005

Senate Majority Leader Bill Frist (R-TN) and the Republican Senators are preparing to invoke the so-called "nuclear option." All that this hysterical phrase actually means is that Sen. Frist is going to call for a rule-change vote so that the Senate can fulfill its constitutional obligation to provide "advice and consent" on judicial nominations. The change will allow a simple majority to force cloture (limit on debate) on judicial nominations in the Senate.

It's about time, and possibly less than really needs to be done. The Senate Democrats have been threatening to pointlessly prolong debate (filibuster) on many of Bush's judicial nominees. The threat is usually sufficient; other than Sen. Harry Reid's eight-hour grandstand protest in November 2003, there may not have been any real filibusters in the last two Congresses.

There actually is no "rule of unlimited debate" in the Senate. (See "Standing Rules of The Senate".) Rather, the Senate lacks adequate rules to prevent it. Senate Rule XXII, when invoked, can limit but not immediately end debate as follows:
- A motion for cloture must be signed by sixteen senators.
- Said motion can't be voted on the same day.
- An affirmative vote from three-fifths of the Senators duly chosen and sworn is required for passage.
- If the motion for cloture carries, thirty additional hours of debate is still permitted on the subject.
This system is totally inadequate to deal with forty-four stonewalling Democrats.

What is going on in the Senate is illegal. The Constitution gives the power to appoint officers to the President, "... by and with the Advice and Consent of the Senate". The Senate may confirm or it may reject, but the Senate is required to reply. A Democratic minority in the Senate (forty-four during last year's Estrada hearings) is preventing a simple majority vote on President Bush's judicial nominees. The Democrats know that they will lose such a vote, so they choose to invoke the threat of a filibuster to force indefinite postponments of the vote. Sen. Frist's proposed rule change would simply require the Senate to obey the Constitution in bringing judicial nominations to a vote.

Sen. Harry Reid (D-NV) and some Democrats are threatening to force a Senate "shutdown" except for "bills that relate to U.S. troops and ongoing government operations." Let them. A government doing nothing isn't much of a threat. If it turns out that the Democrats are able to mess things up significantly by doing nothing, use a "nova option" and put a ten-minute limit of floor debate on all issues.

- Andrew Hadley

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