Following the Senate’s failure to vote on ten of President Bush’s judicial nominations considered by critics to have legal views far to the right of the mainstream, Senate Majority Leader Bill Frist (R-TN) has recently threatened to use a procedural maneuver, termed the “nuclear option” by Trent Lott, to end the ability of Senators to filibuster.
Leader Frist says the filibuster would be eliminated only for judicial nominations, a claim that is disputed by opponents who point out that there is no distinction in the Senate rules between filibustering legislation and judicial or executive nominations. Democrats have pointed out that only ten of the President’s judicial nominations have been blocked, whereas 203 judges were confirmed in the first term, the highest success rate for a President’s judicial nominations ever. The President has renominated seven of the ten nominees blocked in his first term.

Many members of the human needs community have stated positions in support of preserving the filibuster. One reason is that the elimination of the filibuster for judicial nominations could lead to its disappearance in the area of legislation as well, raising concerns that conservative members of Congress could drastically cut back human needs programs with a bare majority vote. Another reason is that the judicial nominees at the center of the debate may themselves be dangerous to human needs programs. For example, one of the controversial nominees, California Supreme Court Justice Janice Roger Brown, has lamented 1937 for signaling the “triumph of our own socialist revolution.” It was the year the U.S. Supreme Court began to uphold New Deal legislation. Justice Brown has pushed legal views that would eliminate minimum wage laws and other worker protections.

A supermajority of sixty votes is required to end debate under Senate rules (called “cloture”), and Senate rules are normally changed only by the agreement of 67 Senators. The procedural move Leader Frist is preparing could involve, in one scenario, raising a point of order to claim that this supermajority requirement to end filibusters is unconstitutional in the context of judicial nominations. The presiding officer of the Senate (probably Vice President Cheney) would agree. Democrats would try to filibuster the point of order and would be overruled by the Vice President, who would recognize a motion to table — which is not debatable. The ruling of the Vice President could be affirmed by a simple majority of the Senators — but it is unclear whether this bare majority will even materialize. No Democrats are expected to vote to affirm and a few Republicans – Senators John McCain (AZ), Lincoln Chafee (RI) and Olympia Snowe (ME) have made clear that they would not support such a move either. Several others are rumored to be uncomfortable with the move.

Democrats initially responded to the “nuclear option” by threatening to use procedural tactics of their own to slow down the work of the Senate and make life very inconvenient for members of the majority party. Each day the Senate is in session, it traditionally handles many items by unanimous consent in order to streamline routine matters of business or items that are not controversial. However, if the nuclear option is used, Democratic Senators could retaliate by calling for the reading of proposed legislation on the floor, debate, cloture votes, and roll call votes on every item that comes before the Senate. For example, items such as the naming of a post office or the confirmation of an obscure and uncontroversial undersecretary that would normally be accomplished in seconds by unanimous consent would now require hours of debate and voting. Democratic Senators could call for the previous day’s record to be read. This could not be stopped without a cloture vote, and Democratic Senators could then call for a roll call vote on the cloture vote, further slowing the process down. Such a potential slow-down has been dubbed the “nuclear winter.”

Republicans such as Chuck Grassley (R-IA) have been quick to frame the Democrats’ response as a threat to “shut down the government” similar to the ill-fated venture of then-House Speaker Newt Gingrich and the Congressional Republicans in 1995. That shutdown involved blocking the funding required to run the government, which the Democrats have not threatened to do. Democratic Senators have stated explicitly that they would not attempt to block essential appropriations.

Senate Democrats have recently placed less emphasis on tactics to slow down the work of the Senate and have instead focused on using maneuvers that would bring a vote on items important to working families. Some of these measures are bills supported by the human needs community, including improvements to the minimum wage and veterans benefits, strengthening child care and education and returning the pay-as-you-go rules to the federal budget process. These measures would not be expected to pass but would serve as rallying points and would be intended to embarrass those who supported the decision to go “nuclear.” Senator Reid continues to offer to search for a compromise that would avoid a nuclear war by allowing votes on some nominees as long as the filibuster would be fully preserved, but thus far Republicans have been unwilling to take this option.

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