Going Nuclear

National Review ponders the nuclear option - changing the rules of the Senate that pertain to filibusters.

The question is especially pertinent after Senator Bill Frist spoke at the annual Federalist Society convention in Washington last week. The Senate Majority Leader indicated that he is inclined to support the so-called "nuclear option," in which the Senate - now with a more muscular Republican margin of 55 to 45 (44 Democrats plus one independent) - would vote to change its procedural rules so that a simple majority (51 senators), rather than the current super majority (60), would be required to bring a nominees name to the floor for a decisive vote.
A filibuster is an extremely long speech that is used primarily to stall the legislative process and thus derail a particular piece of legislation, rather than to make a particular point per se. Although the general perception of a filibuster is Jimmy Stewart speaking non-stop, actual speeches are not required any more; a "procedural filibuster" is allowed under the Senate rules which accomplishes the same thing.

The notion of changing the rules in this way brings three questions to my mind:
  1. Can they?
  2. Will they?
  3. Should they?
Can They? - Yes, I think they can. Changing the rules of the Senate in this way requires only a simple majority vote. Senate Republicans can put this change up to a vote, and have a safety margin of five dissenters within their own party. Arlen Specter would almost certainly vote against it, and I could see McCain opposing the measure as well. Nevertheless, the votes appear to be there.

Will They? - I don't think they will, simply because of the enormous political ammunition that it would give to Democrats. As McCarthy points out in the National Review article, "Democrats and their mainstream media allies would scream bloody murder." A move like this would run the risk of Senate Democrats turning the upcoming confirmation hearings of Gonzales and Rice into circuses not seen since Robert Bork and John Tower.

Should They? - I'm torn on this. During Bush's first term, Senate Democrats used the filibuster ten times to prevent votes on President Bush's judicial nominees. It's true that the Republican Senate of the mid-90's ushered in the modern era of Senate obstructionism, but it wasn't right then and it's not right now. If the Senate Judiciary Committee sends the nominee to the Senate, I feel that the nominee deserves a vote. Moreover, the current sixty-vote rule actually puts the power in the hands of the minority; you only need forty-one votes to prevent a full Senate vote. This sort of arrangement runs counter to the "majority rule" concept that drives our government.

There's certainly precedent for changing the rule. In 1975, a Democratic majority voted to reduce the number of votes required to break a filibuster from sixty-seven to sixty. This change was largely in response to southern senators using the filibuster to block civil rights legislation in the 1950s and 1960s, including Strom Thurmond's record-setting twenty-four-hour-and-eighteen-minute speech of 1957.

My thought is that the "nuclear option" should be held in reserve. Rather than get the new Congress off to a bitterly contentious start, Senate Republicans should try to get a sense as to how obstructionist the new Senate is going to be. Odds are that the Senate will give President Bush his new cabinet with little fuss and then dig in their heels when it comes time to nominate a new Supreme Court justice. If Senate Democrats refuse to allow a Senate vote, the Republicans will be able to make a credible case that they need to change the Senate rules to allow the people's will to be heard.