The Traditional Path of the Sore Loser Leads Senate Republicans to the Brink of the "Nuclear Option"
On Friday afternoon, after the Senate spent more than 25 hours debating the appointment of Texas Supreme Court Justice Priscilla Owen to the 5th Circuit Court of Appeals, Senator John Cornyn (R-TX) filed for cloture. The immediate result of cloture is to bring about a relatively expedient end to debate; tomorrow, the Senate will vote whether to approve Owen's nomination. But if Republicans fail to get the 60 votes necessary to approve her, as they probably will, they will take the traditional path of the sore loser and try to change the rules of the game.
They will, that is, ask the Senate's presiding officer (Vice-President Dick Cheney) to rule that filibustering judicial nominees is out of order. If he says that it is--and if you can think of a time when Cheney has opted for integrity over expediency, please note it in the comments below--the entire Senate will vote on that contention. In that vote, only a simple majority is required; if 50 of the Senate's 55 republicans, plus Cheney's vote of confidence in himself, vote that the Senate does not have the right to filibuster judicial nominees, the Senate will change its own rules to formally renege its place as the government's bastion of relative levelheadedness and modern bipartisanship. This has become known as the "nuclear option." If you refer yourself to the fact that President Bush will most likely nominate at least one, and up to four, Supreme Court Justices in the next four years, you can see that although the issue sounds a little bit musty and Constitutional, it's actually very important. Presidents and Senate Majority leaders come and go, but judges are forever.
Senate Republicans have argued that Democrats, in threatening to filibuster judicial nominees, are subverting the Constitution. As Charles Grassley (IA) put it, “Filibusters on nominations are an abuse of our function under the Constitution to advise and consent.”
It is true that the Senate’s role in this regard is to provide “advice and consent” — to advise the President on his choice of nominees, that is, and to consent to those he eventually sends their way (Article II, Section II). It is also true that by filibustering, a minority of Senators can withhold consent that the majority would otherwise provide.*
Still, this is a willful mischaracterization of the Democratic caucus’s objectives, and the Constitution’s intent. While Austinist is not a Constitutional law scholar, it seems clear to us that the intent of that section is to establish an orderly procedure for the appointment of judges to lifetime terms, in which the President, keeping foremost in mind the Constitution’s overarching goals (domestic tranquility and so on), solicits and heeds the Senate’s advice before seeking their consent. Republicans like Grassley are scrapping the “advice” part of the prescription, not just while grandstanding, but in practice. Joe Biden (D-DE), who was chairing the Senate Judiciary Committee while President Bush was watching baseball in Arlington (not that there’s anything wrong with that), explained the difference to the New Yorker:
Let me tell you how we did it in the Reagan Administration…They came to me and told me whom they were going to nominate, and I’d say, ‘You’re going to have a problem with this one or that one’ — maybe a dozen out of the hundreds of judges that Reagan appointed. And I’d say, ‘If you want to push that guy, all the others will wait in line behind him.’ And the problems generally were removed. We did business that way for years, and it worked. Now this crowd wants to shove everything down our throats. They don’t pull back on anybody. So we escalated with the filibusters. And they escalate with the nuclear option.
With Republicans playing fast and loose with our founding fathers’ ideal of collegiality, we believe that Democrats are acting in good faith to defend the Senate’s role as described in the Constitution.
Since John Cornyn is the Bush yes-man who filed for cloture in the first place, we consider it unlikely that a call to his office would be very productive. But since Senator Kay Bailey Hutchinson is both more reasonable and more running-for-governor, it might not give her office a call at 202-224-5922, and tell her you oppose the nuclear option. Or, if you’re from Pennsylvania, Virginia or Maine, give your swing-voting Senator friends a call:
Arlen Specter (R-PA): 202-224-4254
John Warner (R-VA): 202-224-2023
Susan Collins (R-ME): 202-224-2523
**We should note that for Owens, the filibuster would not be used to withhold consent—consent has already been withheld, given that Democrats blocked her nomination when Bush sent her up in his first term. Owens is one of ten appellate court nominees who was rejected by the Senate last year; seven of them have been nominated again since Republicans took control of the Senate in the last election.
