Nuclear option

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The "nuclear option" in American politics during 2005 refers to a proposed change to the interpretation of the rules of the U.S. Senate for judicial confirmations. Currently, Senate rules allow any member to prevent a confirmation vote by staging a filibuster, which requires a three-fifths majority (60 senators) to break (via a cloture motion). The nuclear option would allow a simple majority (51 out of 100 senators) to end a judicial filibuster. Once cloture is achieved, the nominee can be confirmed by a simple majority vote.

The nuclear option would affect nominees to district and appeals courts, and, perhaps most importantly, the Supreme Court. Chief Justice William Rehnquist is expected to step down during Bush's presidency -- he underwent throat surgery in October 2004 to treat his thyroid cancer -- and if the nuclear option were enacted, Bush's nomination to replace him could be confirmed by a simple majority of 51 Republican senators.

Recent history

Republicans currently hold 55 seats, while Democrats hold 44 seats plus the vote of independent Jim Jeffords. During his first term, President George W. Bush nominated forty-six individuals to federal appeals court seats. Thirty-six of those individuals had been confirmed. However, Democrats blocked the confirmation of 10 nominees, on the grounds that they were too "out of the mainstream" for a lifetime appointment. During the beginning of his second term, Bush resubmitted 7 of the 10 nominees to the Senate for confirmation and Senate Minority Leader Harry Reid (D-Nev.) vowed to fight their confirmation.

On May 23, 2005, Senate Majority Leader Bill Frist (R-Tenn) called for a vote on one of the blocked nominees, Priscilla Owen, and threatened to use the nuclear option to overcome a Democratic filibuster.

Although Senate rules can technically only be changed by a two-thirds (67) vote, Frist planned to rise to a point of order that filibusters of judicial nominees are unconstitutional and/or otherwise improper. The Senate's presiding officer, likely Vice President Dick Cheney, could then rule on the point of order, which Cheney would be expected to sustain. The Democrats could then appeal the decision of the chair, a motion which the Republicans would immediately move to lay on the table. The motion to lay on the table is non-debatable, and would require a simple majority vote to sustain the ruling of the chair. With success, Republicans would establish a precedent that judicial filibusters are out of order.

On May 23, 2005, Senator John McCain (R-Ariz.) and Senator Ben Nelson (D-Neb.) announced an agreement by seven Republican and seven Democratic Senators to avert a vote on the nuclear option while preserving the filibuster for "extraordinary circumstances". The moderate block of Senators that agreed to the compromise included, on the Republican side, John McCain, Lindsey Graham, John Warner, Olympia Snowe, Susan Collins, Mike DeWine and Lincoln Chafee, and on the Democratic side, Ben Nelson, Joe Lieberman, Robert Byrd, Mary Landrieu, Daniel Inouye, Mark Pryor and Ken Salazar. The bipartisan group is large enough to prevent the nuclear option from succeeding and also large enough to reach cloture on a Democratic filibuster. The agreement is available here (pdf). It states, in part:

we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

As a result of this agreement, on May 25, 2005, Priscilla Owen, one of the original blocked nominees, was confirmed as federal judge. [1]

Senate tradition

There is a long history of contentious disputes over the rules used to delay or block floor votes in the United States Congress. Established procedures have been overturned at several points in the history of both Houses.

In the House of Representatives, the filibuster (the right to unlimited debate) was used until 1842, when a permanent rule was adopted, limiting the time of debate. The disappearing quorum was a tactic used by the minority until 1890, when this technique to prevent a quorum was eliminated. As the membership of the House grew much larger than the Senate, the House has acted earlier to control floor debate and the delay and blocking of floor votes.

When the First US Senate met in 1789, the filibuster was not an option. The Senate adopted rules allowing them "to move the previous question," ending debate and proceeding to a vote. In 1806 this rule was eliminated, making it possible for the filibuster to be used for the delay and blocking of floor votes, since this left no mechanism for terminating debate. The first actual use of the filibuster on the Senate floor occurred in 1837. A rule allowing for the cloture of debate (ending a filibuster) was first adopted in 1917. In 1917 the cloture vote requirement was two-thirds of Senators present. This was changed to two-thirds of the total membership in 1949, then to two-thirds of those present and voting in 1959. In 1975, the cloture requirement was lowered to three-fifths of total membership, the current rule. There was another type of filibuster used in the Senate (the post-cloture filibuster—using points of order to consume time, since they are not counted as part of the limited time provided for debate) which was eliminated as an effective delay technique by a rule change in 1979.

Before 2002 there were other ways beyond the fillibuster for a minority party to block a nomination they found unacceptable. The two most prevalent ways were through the use of the "blue slip" and "holds." Both of these methods of dissent were exercised in the Senate Judiciary Committee, before the nomination could reach the full Senate. Both methods also give the power to overturn a nomination to only a few senators. Sometimes all it takes is one Senator to derail a nomination.

Republicans made full use of these tactics while they were the majority party under President Clinton. When the White House transferred to President Bush, however, they began to dismantle these processes. Now Democrats are left with no other processes beyond the fillibuster to oppose nominations that they find unpalatable.

Blue slips

Before a nomination is passed out of the Senate Judiciary Committee it is screened by both senators in that nominee's home state. This process is accomplished by something called a "blue slip." A blue slip is a piece of paper asking the senators to endorse or denounce the proposed nominee. Until 1995 both home-state senators had to denounce a nominee before he would be removed from committee consideration. NewsandEvents/UGRC2004/willis.pdf (PDF)

In 1995 Republicans gained control of the Senate and decided to change the rules governing the judiciary committee process. They began by changing the blue slip rule. In the 104th Congress 18 states had split senate delegations, one republican and one democrat. Sen. Orrin Hatch (R-Utah), Chairman of the Judiciary Committee, changed the rule so that only one of the home-state senators had to object to a nominee to remove him from consideration. Also the wording on the blue slips themselves was revised to say, “[n]o further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee’s home state senators.”[2] This encouraged several senators to delay nominations by not returning blue slips. Some of President Clinton's nominees were delayed years waiting for blue slips to be returned from republican senators.[3]

In 2001 President George W. Bush was sworn in. Sen. Hatch suddenly made an about-face. Where he had previously changed the rule to require only one negative blue slip, now he felt that the committee should return to requiring both home-state senators object to a nominee. [4] He also altered the text of the blue slip to remove the sentence saying no further proceedings would be scheduled until the blue slip was returned to the committee. These changes were later overturned when Democrats regained control of the Senate, after Jim Jeffords (I-Vermont) changed his party alignment.

In 2002 after the congressional elections Republicans returned to majority party status. At that time the rules were changed again, to now require two dissenting blue slips to reject a nominee before the committee. Sometimes though, two dissenting blue slips are still not enough to derail a nomination. In 2003 the Judiciary Committee heard testimony on the fitness of Henry Saad. This occurred after both home state senators, Senators Debbie Stabenow and Carl Levin, had expressed their disapproval of this nominee. With no committee options left to derail unpalatable nominations, Democrats began threatening to fillibuster nominations once they reached the full floor of the Senate.

Holds

The "hold" is where a senator communicates to the Senate leadership that he or she would withhold support for a unanimous consent agreement if the matter were to come up. The reason this has power is that, in the absence of a powerful Rules Committee like the United States House of Representatives has, the Senate's ordinary business depends on unanimous consent agreements to specify what bills will be considered when, who may speak, what amendments may be offered or if any may be offered at all, and when votes will take place. The quiet threat of a hold ordinarily is enough to take an issue -- including a judicial nomination -- off the agenda, at least temporarily.

Republican Senators used this method to postpone votes on nominees in the Judiciary Committee. [5] In late 1999, New Hampshire Republican Bob Smith blocked a vote on 9th U.S. Circuit Court of Appeals nominee Richard Paez for months by putting an anonymous hold on the nomination. [6]

50 percent majority

The main argument by Republicans supporting the nuclear option is that the U.S. Constitution does not require a three-fifths majority vote for confirmation of judicial nominees, implying a simple majority would do. Therefore supporters argue that the nuclear option would restore the Senate's constitutional role of advising and consenting to the President's nominations with a simple majority. Because of this, supporters prefer to call it the "constitutional option". Supporters argue that the filibuster of Bush's nominees effectively establishes a 60 vote threshold [7][8][9] for approval of judicial nominees instead of the historical 50 vote standard, that this standard has no historical basis[10], and that many existing justices[11] would not pass this stricter standard. For example, existing Supreme Court Justice Clarence Thomas was confirmed in a 52-48 vote in 1991[12].

However, opponents counter that the Constitution does specify a two-thirds majority for other Senate tasks, and the Constitution gives the Senate the power to make its own rules. The history of Senate rules shows that filibusters were unlimited in 1806 (requiring 100% support in the Senate), and that cloture could be achieved with a two-thirds majority in 1917 and a three-fifths majority in 1975. So opponents argue that the Senate has a long tradition of requiring broad support to do business.

60 percent majority

Rather than require the President to nominate Judges who get broad support from both parties in the Senate (60 out of 100 Senators), opponents claim the nuclear option would allow the President to nominate partisan Judges supported only by 50 Republican Senators plus the Vice President. Conveniently, Republicans currently hold 55 of 100 seats in the Senate, and Democrats claim the nuclear option is an attempt by Senate Republicans to hand confirmation power to themselves.

Of the 9 U.S. Supreme Court Justices seated as of May 2005, 8 Justices were confirmed by more than 60 percent of the Senate. Most were confirmed unanimously or nearly unanimously. In contrast to these confirmations, Priscilla Owen was confirmed 55-43.[13]

Name Date Confirmed Senate Vote reference
Rehnquist September 17, 1975 65-33 [14]
Stevens December 17,1975 98-0 [15]
O'Connor September 21, 1981 99-0 [16]
Scalia September 17, 1986 98-0 [17]
Kennedy February 3, 1988 unanimous [18]
Souter October 2, 1990 90-9 [19]
Thomas October 15, 1991 52-48 [20]
Ginsburg August 10, 1993 97-3 [21]
Breyer May 14, 1994 87-9 [22]

Advice and Consent

Supporters of the nuclear option claim that Democrats are "obstructing" the president's nominees. President Bush has nominated forty-six candidates to federal appeals courts. Thirty-six had been confirmed. 10 were blocked and 7 were renominated in Spring 2005. However, Democrats point out that more than 60 of President Clinton's nominees (40 of which were federal appeals court nominees) were bottled up in committee, leaving positions available for Bush to fill. [23] (Republicans were the majority in the Senate for six of Clinton's eight years as President, 1995-2000.)

Opponents also contend that Article II, Section 2, of the U.S. Constitution says the president "shall nominate, and by and with the Advice and Consent of the Senate, ... shall appoint Judges..."[24] and that the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations.

Polling indicates the public supports this idea of "advice and consent". The Democratic pollster, Westhill Partners, found that only 30 percent of Americans approve changing "the rules to require only 51 votes to end a filibuster — thereby eliminating the current system of checks and balances on the majority party." [25] An Associated Press-Ipsos poll released May 20, 2005, found 78 percent of Americans believe the Senate should take an "assertive role" examining judicial nominees rather than just give the president the benefit of the doubt.[26]

The agreement reached by the 14 moderate Senators supports a strong interpretation of Advice and Consent from the Constituion. [27] (pdf):

We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

Bill Frist's political motivations

Many Democrats view Frist's threats to push the nuclear option button to be more about his ambition to run for president in 2008 than about the qualifications of the 7 nominees currently blocked in the Senate. [28] Quoting from Slate.com:

Frist has made clear he will give up his Tennessee Senate seat in 2006, keeping his pledge to serve just two terms and leaving himself free to campaign for president. He has begun to court his party's conservative base. By pouncing on Arlen Specter after the November election to demand that the Pennsylvania senator pledge his support for the president's judicial nominees as prospective head of the Senate judiciary committee, Frist made an obvious overture to Christian conservatives.

Pat Robertson, founder of Christian Coalition of America and several other prominent Christian conservatives have endorsed the nuclear option as a necessary means of getting conservative judges onto the bench. In a May 1, 2005 interview on ABC's 'This Week with George Stephanopoulos', Pat Robertson said that Democratic judges are a greater threat to U.S. unity and stability than Al Qaeda, Nazi Germany or Civil War. [29] On Sunday, April 25, 2005, Family Research Council sponsored "Justice Sunday" featuring Bill Frist - a 90-minute simulcast over Christian radio and television networks enthusiastically supporting the nuclear option.[30] [31] In January 2005, Dr. James C. Dobson, head of the Focus on the Family, threatened six Democratic senators if they block conservative nominees. [32] On May 24, 2005, after the compromise negotiated between 14 Senators was announced, Dobson, said the agreement "represents a complete bailout and a betrayal by a cabal of Republicans and a great victory for united Democrats." [33]

Blocking "extremist" judges

In April 2005, Democrats were blocking the confirmation of 7 nominees, all of whom Democrats claim are too extreme for a lifetime appointment. President Bush's most controversial nominees are Janice Rogers Brown and Priscilla Owen. [34] Citing descriptions like "dogmatic" (American Bar Association[35]), "extreme" (New York Times[36]), and "activist judge" (CivilRights.org[37]), Senate Democrats, in April 2005, had vowed to fight Brown and Owen's confirmations to the courts.

Opposition: The Los Angeles Times calls Brown "A bad fit for a key court". Brown's alleged dogmatism and a style bordering on vituperation earned her only a qualified rather than well qualified rating from the American Bar Association. Some committee members found her unfit for the appeals court.[38] The New York Times editorialized, "Brown's record as a judge is ... cause for alarm. She regularly stakes out extreme positions, often dissenting alone."[39] People for the American Way President Ralph G. Neas described Janice Rogers Brown as the "far right's dream judge." [40]. Senate Minority leader Harry Reid said "She is a woman who wants to take us back to the Civil War days" [41] A list of over 100 organizations that oppose Brown's confirmation is given here.
Another view: Supporters counter that Brown has opposed racial profiling ([42]) and won election and then re-election (with 75% of the vote) to the Supreme Court of California. [43] Supporters also argue that Justice Brown's record of judicial decisions cannot support a characterization of her views as "extremist," [44] [45] and that her record evinces a sensitivity to civil rights. [46] In 2000, she followed the Supreme Court's lead in Adarand Constructors, Inc. v. Mineta, striking down a San Jose city ordinance requiring government contractors to solicit bids from companies owned by women and minorities, demonstrating her opposition to affirmative action. [47]
Opposition: The Houston Chronicle characterized Owen as "one of the most conservative" justices on "Texas' Republican-dominated top court."[48] Owen is part of a court that some have criticized for accepting campaign contributions from parties appearing before it—while its justices do not recuse themselves from those cases.[49](PDF file) The New York Times said Owen is "considered by legal analysts in Texas to be among the most conservative members of the Texas Supreme Court, which, in turn, is considered one of the nation's most conservative supreme courts."[50] The Leadership Conference on Civil Rights (representing 180 national organizations) calls Owen a "judicial activist with a disturbing willingness to effectively rewrite or disregard the law."[51] A list of of 60 organizations that oppose Owen's confirmation is given here
Another view: Greg Abbott, attorney general of Texas and a former justice on the Texas supreme court, disputes the above charge from the Leadership Conference on Civil Rights. [52] Justice Owen received a unanimous rating of "well qualified" from the American Bar Association. [53] In 2000, she was re-elected to the Texas Supreme Court with 84% of the vote.

Barring the American Bar Association

In March 2001, President Bush announced that the administration will no longer seek the American Bar Association’s evaluations of federal judicial candidates, ending a history started by Eisenhower in 1953. [54] Despite this, the ABA’s committee continues to provide the public service.[55] Democratic senators all favor the ABA input.[56] The ABA committee rates each nominee "Well Qualified," "Qualified" or "Not Qualified." While some nominees receive majority/minority ratings, the majority rating is the official rating of the Committee.[57]

The ABA ratings of Article III Judicial nominees for the 109th Congress, updated April 2005, are listed here. Three nominees on that list are rated "Not Qualified" by a minority of the ABA committee: Janice Brown, William Pryor and Thomas Griffith. However, the majority of the ABA committee found three of those four - Brown, Pryor and Griffith - "Qualified". Priscilla Owen was unanimously found "well qualified" by the ABA committee.

While Republican pollster Ayres, McHenry and Associates found that 82 percent of registered voters believe that "well-qualified" nominees should receive a Senate vote.[58][59](both PDF files), the ABA gave only 7 out of the 21 judicial nominees a unanimous rating of "well qualified".[60]

Obstructing a power grab

In response to claims of "Senate obstructionism," Senate Minority Leader Harry Reid, D-Nev, pointed out that only 10 of 214 nominations by President Bush have been turned down. [61] Former President Bill Clinton called Republican efforts to paint Democrats as obstructionist "a hoax" stating "The Republicans wouldn't even give a vote to 40 of my Court of Appeals judges... never mind all the others that they wouldn't have voted." George W. Bush has a better record of having his judicial nominees approved than any President in the past 25 years. [62] One of Democrats' biggest complaints has been that more than 60 of President Clinton's nominees were bottled up in committee, leaving positions available for Bush to fill. [63] (Republicans were the majority in the Senate for six of Clinton's eight years as President, 1994-2000.) On April 27, 2005, Former Vice President Al Gore said, "Their grand design is an all-powerful executive using a weakened legislature to fashion a compliant judiciary in its own image. ... What is involved here is a power grab."

Offers of cooperation rejected

As a goodwill gesture to show that they are willing cooperate with Republicans, on May 9, 2005, Senate Democratic leader Harry Reid offered the Democrats' support for one of President Bush's less controversial judicial nominees, former Senate lawyer Thomas Griffith[64]. Reid stated that Democrats "will only block unacceptable nominees" (such as Brown and Owen), but would confirm Griffith, saying "Let's take a step away from the precipice. Let's try cooperation, rather than confrontation." Republican spokesman, Bob Stevenson, rejected the offer saying "Why stop at one? We should take them all up", signaling Republican's intent to use the nuclear option as an "all or nothing" weapon.

Nuclear option considered illegal

As for the legality of the nuclear option, the Senate parliamentarian, an ostensibly neutral staff member and appointed keeper of the Senate's rules, opposes the nuclear option. In a Christian Broadcasting Network interview, Senator Reid stated that "the parliamentarian of the United States Senate has said it (the nuclear option) is illegal." [65] Washington D.C. newspaper The Hill reports that a Congressional Research Service report "leaves little doubt" that the nuclear option would not be based on previous precedents of the Senate.[66]

Democratic and public opposition

Some also believe that the nuclear option is part of a plan to reduce the independence of the courts and make them more subservient to Congress. As of April, 2005, Republican presidents have appointed a majority of the judges in 10 of the 13 federal appeals courts, 7 of the 9 justices on the Supreme Court and every chief justice since the Truman administration.

It is expected that the entire Democratic caucus will oppose the nuclear option. Many prominent Democrats have come out against the nuclear option, and none have come out in support of it.

Compromise

Democratic proposal

On May 9, 2005, Senate Democratic leader Harry Reid offered the Democrats' support for one of President Bush's judicial nominees, former Senate lawyer Thomas Griffith[67]; Democrats cited this offer as a goodwill gesture to show that they are willing cooperate with Republicans and confirm "acceptable" nominees. Reid stated that Democrats "will only block unacceptable nominees" (such as Brown and Owen), but would confirm Griffith, saying "Let's take a step away from the precipice. Let's try cooperation, rather than confrontation."

Republican spokesman, Bob Stevenson, rejected the offer saying "Why stop at one? We should take them all up", signaling Republicans' intent to use the nuclear option as an "all or nothing" weapon. Republicans also contended that the Democrats' offer was empty, since the Democrats would have retained the discretion to block any of President Bush's future nominees that they unilaterally deemed "extremist," even when those nominees enjoyed the support of all 55 Republican Senators. Thus, Republicans asserted that Reid's offer did not solve, going forward, the problems that led to consideration of the nuclear option in the first place. Republicans also contend that the Democrats' judicial filibusters have already killed three of President Bush's Court of Appeals nominations (Miguel Estrada, Charles Pickering, and Carolyn Kuhl), as those judges withdrew their nominations rather than continue to fight the filibuster. Thus, Republicans argue that any talk of compromise should take into account that Democrats have already kept those three judges off the bench. [68]

Republican counter-proposal

Senate Majority leader Bill Frist floated a Republican counter-offer, in which, in exchange for ending the filibuster against judicial nominees, the Republicans offered to end the practice of bottling up appellate-court nominees in committee (the main reason that Democrats complain many of President Clinton's nominees were denied floor votes), and to guarantee up to 100 hours of debate on each nomination. Minority Leader Reid rejected that offer, calling it "a big wet kiss to the far right." [69]

The "Gang of 14"

On Friday, May 20th, a cloture vote for the nomination of Janice Rogers Brown was scheduled for Tuesday, May 24th. The failure of this cloture vote would be the beginning of the nuclear option, immediately followed by the asking for the ruling of the Chair on the Constitutionality of the Filibuster.

Senator John McCain (R-AZ) and Senator Ben Nelson (D-NE) reached out to a number of colleagues on both sides to compromise by winning confirmation of some of the disputed nominees while preserving the judicial filibuster. [70] Their efforts succeeded on the evening of May 23, 2005, one day before the cloture vote.

The moderate block of Senators that agreed to the compromise included, on the Republican side, John McCain, Lindsey Graham, John Warner, Olympia Snowe, Susan Collins, Mike DeWine and Lincoln Chafee, and on the Democratic side, Joe Lieberman, Robert Byrd, Ben Nelson, Mary Landrieu, Daniel Inouye, Mark Pryor and Ken Salazar. This group was quickly dubbed "the Gang of 14" in various blogs and news outlets.

Legitimacy of filibustering judicial nominees

In response to claims that the filibuster of judicial nominees is unconstitutional, opponents point out that the Constitution requires two-thirds majorities for actions such as treaty ratification and proposed constitutional amendments and is silent on what kind of vote is required for other matters. Instead, Article I, Section V of the Constitution permits and mandates that each house of Congress set up its own rules. Republicans counter that the fact that the Constitution's Appointment's Clause does not impose a three-fifths majority requirement for the Senate's "advice and consent" function in considering the President's judicial (and executive branch) nominees is, itself, evidence that the Framers consciously rejected such a requirement. [71] Republicans also state that the general rule in Parliamentary systems "is that majorities govern in a legislative body, unless another rule is expressly provided." [[72]

Republicans point out that several Democrats once opposed the filibuster on judicial nominees, and have only recently changed their views as they have no other means of stopping Bush's judicial appointees.[73][74][75]

Republicans were staunch supporters of the filibuster when they were a minority party and frequently employed it to block legislation. Republicans continue to support the filibuster for general legislation--the current Republican leadership insists the proposed rule change only affect judicial nominations. According to the Democrats, arguments that a simple majority should prevail apply equally well to all votes where the Constitution does not specify a three-fifths majority. Republicans state that there is a difference between the filibustering of legislation -- which affects only the Senate's own constitutional prerogative to consider new laws -- and the filibustering of a President's judicial or executive nominees, which arguably impinges on the constitutional powers of the Executive branch.

Republican Senators, including Bill Frist himself, have filibustered in the past to block judicial nominees:

  • In 1996, Clinton nominated Judge Richard Paez to the 9th Circuit of the United States Court of Appeals. Conservatives in Congress held up Paez's nomination for more than four years, culminating in an filibuster on March 8, 2000, which failed when only 14 Republicans approved it. Bill Frist was among those who voted to filibuster Paez[76] [77] [78]. Paez was ultimately confirmed with a simple majority.
  • In 1968, Republican Senators led a four-day filibuster and successfully blocked Lyndon Johnson's nomination of Abe Fortas to be elevated from Associate Justice of the Supreme Court to Chief Justice of the United States. Some Republicans now claim this nomination would have likely failed on a simple up or down vote, but there is no way to know since such a vote was prevented by the filibuster. The Democrats controlled the Senate and Johnson was known for his legislative skills. A cloture motion to move the nomination to a floor vote did get a simple majority, but nowhere near the 66 votes then needed to end debate. Voting against cloture were 24 Republicans and 19 Democrats. [79] Republicans cite the 19 Democratic votes as evidence of bipartisan support for the filibuster, unlike the current filibusters of President Bush's nominees. Democrats point out that all 19 of the Democrats who voted against cloture were from the bloc of southern Democrats (the so called Dixiecrats) that had teamed with Republicans to filibuster civil rights legislation in the 1960s. Republicans also point out that the filibuster of Justice Fortas was justified by the filibusterers as based on his alleged ethics violations, and that the allegations of ethical improprieties actually led to his resignation from the Supreme Court. [80] Democrats note that Justice Fortas was never charged with violating any laws and that similar ethical issues, accepting gifts, have been raised against Judge Owen (and dismissed by Republicans who claim that she did nothing improper).

The Fortas filibuster marked the first use of this tactic against a judicial nominee in U.S. history. It was the only successful judicial filibuster until the Democrats use of the tactic against Bush nominees. Before the Fortas filibuster the Senate would defer to a president's wishes on court appointments, even when it was controlled by the other party. Since the Fortas precedent, both parties have fought appointments in the Senate, but none had actually been filibustered again until the Republicans revived the tactic in 1996.

There are three nominees whom some Republicans discussed filibustering, but Republicans argue that this was merely a threatened filibuster, as these nominees did eventually get a vote.[81](PDF file)[82][83]. Democrats counter that Republicans are attempting to redefine "filibuster" to mean "successful filibuster" and point out that Republicans did filibuster but that Democrats secured enough votes to end it. While Democrats often cite as an exception Lyndon B. Johnson's 1968 nomination of Abe Fortas[84] to be elevated from Associate Justice of the Supreme Court to Chief Justice of the United States, Justice Fortas was the subject of a breaking ethics scandal and Republicans insist that he did not have the support of a majority of Senators -- and in fact, the ethics charges swirling about him led him to resign from the Supreme Court after his nomination to be Chief Justice died. Moreover, Despite these possible exceptions, the systematic filibuster of nominees with confirmed support from a majority of Senators sets a new standard. Democrats did not even filibuster President George H.W. Bush's controversial nomination of Clarence Thomas in 1991, even though Republicans almost certainly would not have been able to muster the votes to overcome such a filibuster.

In 1995, when Democrats held the White House and a majority of the Senate, the New York Times editorialized, "The U.S. Senate likes to call itself the world's greatest deliberative body. The greatest obstructive body is more like it. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This [is a] relentless abuse of a time-honored Senate tradition . . . . Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes." (Democrats note that even with Republicans blocking confirmations in 1995, Senate Democrats never attempted to rewrite Senate rules for confirmation.)

When President George W. Bush took office there were dozens of federal court vacancies, which Democrats contend President Clinton had been unable to fill due to Republican blocking of his nominees. Democrats assert that, for the most part, Republicans did not raise objections to those judicial candidates, but simply refused to hold hearings on the nominations. Republicans held a majority in the Senate during the last 6 years of the Clinton administration, and Democrats claim that the Republicans' record in the confirmation of Clinton's nominees was far worse that what happened during any previous Republican presidency with a Democrat-controlled Senate.

One of the arguments made by Republicans opposed to the nuclear option was that sooner or later, history dictates that Democrats will return to the majority, and thus the GOP might need tools to block the appointment of an extremist judge for the Democratic party. Following the Gang of 14 compromise, at least one Democrat partisan took up the corollary to this point, and suggested that the Democrats' should have taken the opportunity to rid the Senate of the filibuster, a tool he characterized as a "guarantee that the United States won't pass legislation extending health insurance to all its citizens" and "an inherently reactionary tool that, over the long term, has impeded and will continue to impede activist liberal government".[85]

Protests

On the Princeton University campus, outside the Frist Campus Center (named for Senator Bill Frist's family) students staged a protest against the nuclear option by "filibustering" for two weeks non-stop, beginning on April 26, 2005. Other protests took place at Carleton College, Yale University, Harvard University, Stanford University and Iowa State University. The University of South Carolina organized a counterprotest "point of order" in support of ending judicial filibusters on May 20, 2005.

Alternate Vocabulary

Senator Ted Stevens first suggested using a ruling of the chair to defeat a filibuster in February 2003, the code word for the plan was "Hulk." Weeks later Senator Trent Lott coined the term nuclear option. (Washington Times, May 10, 2003, "Judicial filibuster rule change faces high hurdle in Senate," Charles Hurt). Subsequently, Senator Trent Lott again used the term "nuclear option" in an interview with the Clarion Ledger. The maneuver was called the "nuclear option" because it was seen as a last resort with possibly catastrophic consequences for both sides. The term's association to nuclear war is intended to suggest the maneuver being a 'last resort', as well as the extreme consequences some people think the rules change would produce. The term was partially abandoned by some of its supporters, who preferred to call it "the Constitutional option" or "the Byrd option" To make matters more confusing, in April 2005 Republicans began to attempt to redefine the 'nuclear option' as a description of the Democratic filibuster, rather than the rule change that would end it[86]. Important Republicans in the controversy included Majority Leader Bill Frist, who was one of the strongest opponents of the fillibuster (and whose support from the religious right for his 2008 election bid may have depended on ending it[87]), and the those like John McCain that would have broken with their party in opposition to the nuclear option, possibly denying Frist the necessary majority.

See also

External links

Opposed to the nuclear option

Opposed to the nuclear option: Myth & fact sheets

Support of the nuclear option

Support of the nuclear option: Myth & fact sheets

Other

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