The Ongoing Controversy Over Judicial Nominees What Will It Mean if the GOP "Goes Nuclear" On The Filibuster Rules?

By JOHN W. DEAN
Friday, May. 23, 2003

When Clinton was President, Senate Republicans blocked votes on his nominations of ideological judicial nominees - by simply refusing to process nominations.

Now their Democratic colleagues are doing the same to President Bush's nominees, this time via the filibuster - a little-understood, unique procedure that has an enormous impact on the legislative process.

The Republicans, however, don't seem to think that turnabout is fair play. That's no surprise: Points of view on the filibuster tend to correlate quite precisely with who is being helped or hurt by the ploy. Conservative Republicans used the filibuster, for instance, to blocked Senate approval of President Clinton's legislative proposals dealing with health care reform, campaign law reform and to block the nomination of Dr. Henry Foster to be Surgeon General.

Democrats are currently filibustering two of President Bush's hard right conservative judicial nominees, Miguel Estrada and Priscilla Owen, and they are threatening to block additional nominees. In response, Republicans, well known for their political tantrums when they don't get their way, are shaking their fists, stomping their feet, and making ugly threats.

Because of the stakes, the future of the filibuster itself may be at issue. Looming on the horizon are several potential vacancies on the U.S. Supreme Court. Republicans are flush with the prospect of Bush's sending the Senate nominees to tilt the high Court further to the hard right. But if the Democrats can succeed with their current filibuster of lower court judges, they will also be able to block President Bush from packing the High Court.

For this reason, for weeks there has been a buzz on Capitol Hill suggesting that Republican Senate leaders may be ready to "go nuclear." The word on the Hill is, in other words, that they may employ an extremely powerful and seldom-used tactical procedural device to end the filibusters. The procedure is deemed "nuclear" because it is so explosive it is all but certain to result in a nuclear winter between Republicans and Democrats if used.

To understand this "nuclear" option, it's best to first explore the basics of the more conventional - and time-tested - weapon of the filibuster.

The History Of The Senate Filibuster and the Cloture Vote

Under the Constitution, each house of Congress makes its own rules. Because of its smaller size, with only two senators for each state, the Senate from its outset provided for more open and extended debate than the House of Representatives. The first recorded occasion when such extended debate was used to defeat a proposal by literally trying talking it to death, was in 1790. The topic was a proposal to move Congress from New York City to Philadelphia.

Between 1820 and 1860, the use of extended debate in the Senate developed. By 1856, it became a right in the Senate.

In 1917, during the Presidency of Woodrow Wilson, the Senate adopted a rule permitting a "cloture vote" by a two-thirds supermajority of its members to end a filibuster.

Yet the Senate did not invoke cloture even once from 1927 until the early 1960s; each of its members wanted to keep the filibuster right himself, and thus did not want to impose a cloture vote on another member. In 1939, Jimmy Stewart's portrayal of a heroic use of the filibuster in "Mr. Smith Goes To Washington" only decreased the public image of the cloture vote.

In the mid-1950s and early 1960s, however, it was the filibuster that became the villain. A few Southern Senators used it to prevent the passage of laws assuring African Americans the basic rights to education, voting, housing and public facilitates to which they were entitled.

Indeed, Southern Democrats tied up the landmark 1964 Civil Rights Act with a seventy-four day filibuster, with newspapers and television covering the bigoted Southern intransigence. That was enough to outrage Americans everywhere, and change public attitudes about the filibuster.

Ultimately, the civil rights laws were adopted by breaking the filibuster. And after that, the Senate soon changed its rules. Senate Majority Leader Mike Mansfield, a mild-mannered Montana Democrat, developed a system to preserve the Senate's tradition of unlimited debate, without tying the Senate into procedural gridlock. He introduced the modern filibuster.

The Modern Filibuster and Its Predecessor

Here is how filibusters had worked for decades, before the advent of Mansfield's system: To conduct a filibuster, a Senator had to be recognized by the presiding officer and then had to maintain the floor by talking. Because one man (or woman) can only talk so long without sitting, eating, sleeping, and other human necessities, the Senator running the filibuster can yield to a colleague who has joined in the filibuster to continue, thus operating like a tag team.

Teams of Senators relieved one another so they would not lose the floor. They would sleep on sofas in the Senate cloakroom. Some even wore a device known to long-distance bus drivers as a motorman's pal - enabling them to relieve themselves without leaving the Senate Floor.

Whenever the Senate had a filibuster, all other Senate business came to a halt. The filibusters occupied the Senate floor 24 hours, seven days a week, until they either got the proposal they wanted removed from the Senate's agenda, or a cloture vote ended the filibuster.

With Mansfield's proposal, all this changed. The Senate is generally a collegial body - doing much of its business, of necessity, by "unanimous consent." Under Mansfield's "two track" system, the Senate agreed, by unanimous consent, to spend its mornings on the matter being filibustered, and the afternoon on other business.

As Professors Catherine Fisk and Erwin Chemerinsky point out in their excellent article "The Filibuster," this worked for everyone. On the one hand, the two-track system strengthened the ability of the majority to withstand a filibuster by enabling it to conduct other business. On the other hand, it made it easier for the filibustering minority, which did not have to constantly hold the floor.

In time, the mere prospect of a filibuster became enough to block consideration of a given matter. Unless the leadership knows that it has the support of at least sixty Senators, sufficient to invoke cloture and override the threatened filibuster, then the matter will not even go to the floor for a vote. Thus, the modern filibuster has become a silent filibuster.

Because the filibuster is a negative procedure, and one that frustrates the will of a simple majority, it has a bad reputation. Those who employ the filibuster argue that it prevents the tyranny of a bare majority and protects the views of the minority, and points to its long tradition in the Senate. Meanwhile, opponents denounce it as an anachronism unbefitting the modern Senate.

In is present form, the filibuster is, in essence, a minority veto. To overcome it requires a supermajority - a supermajority the Republicans do not currently command. Senate Republicans find that frustrating - and that is why the "nuclear" option is being considered.

Republican Threats To Change The Rules By "Going Nuclear"

Here is the situation that induced the Republicans to begin thinking "nuclear:" Majority Leader Bill Frist and Senate Judiciary Committee Chair Orrin Hatch want to change the rules of the Senates regarding the cloture vote, so that a simple majority can approve (or disapprove) a president's judicial nominees.

But changing the rules of the Senate is no small matter. Doing so itself requires a vote of two-thirds of the Senate - or sixty-seven Senators. And that seems to leave the Republicans in the same place they are with their attempt to invoke the current version of the cloture vote: nowhere. Wherever they look, the need for a supermajority vote seems an insuperable obstacle.

A recent article in the Congressional based newspaper, The Hill, explained the "nuclear" tactic. Rather than seeking a vote to change the rules of the Senate, the Republicans would instead seek a ruling from the presiding officer of the Senate - Vice President Dick Cheney - that Rule XXII, the cloture vote rule, does not apply to executive matters such as nominations submitted to the Senate by the president - including judgeships. Rather, the rule only applies to legislative business. Why? Because, they now argue, were it otherwise, the Senate would be able to filibuster the president's business, and that would be a violation of the separation of powers.

Needless to say, such a procedural ruling would be contrary to long practice. But this doesn't mean that Cheney would not give the GOP members exactly what they want. And if he did, there would be little left for the Democrats to do about the new interpretation: It would take a simple majority to override Cheney, and they don't have one.

Nor could the Democrats simply walk out, for the fifty-one Senate Republicans can run the Senate in their absence, for they have more than a quorum. So the walkout option the Texas legislature's Democrats employed is a non-starter. (By leaving, the Texas Democrats robbed Republicans of the quorum they need to jam through a new Congressional redistricting plan that would have given them four more seats in the House of Representatives.)

Why the "Nuclear" Tactic Could Lead to "Nuclear Winter"

As The Hill reported, however, this nuclear tactic could result in a disaster: "If the Republicans were able to force a change by jamming through a procedural ruling, 'It would be a nuclear winter in the Senate,' said [an aide to the Senate Democratic leadership]. 'This place would fall apart. It would be dire consequences if that happened, in my opinion.'"

What the aide was implying was that the unanimous consent so necessary for the operation of the Senate would end, should the Republicans employ a phony procedural device to change the rules.

Will the Republicans employ this tactic to change the rules, so that they can confirm whomever Bush nominates to the Supreme Court? It's impossible to say, but it certainly cannot be ruled out.

Washington has never been more partisan than it is today. Never have Republicans played more political hardball than they are currently. If ever there were a serious prospect of it happening, it is now.

So if Vice President Cheney is soon spotted in the presiding officer's seat of the Senate, be ready for a nuclear detonation - and for the very different U.S. Senate that will follow. You might also call this a Republican death wish - for Democrats are not without their own nuclear arsenal, should pre-emption become the favorite tactic of Senate Republicans.


John Dean, a FindLaw columnist, is a former Counsel to the President of the United States. For those interested in additional reading on the filibuster, Dean recommends an excellent January 1997 Stanford Law Review article, "The Filibuster," written by law professors Catherine Fisk (of Loyola Law School) and Erwin Chemerinsky (of University of Southern California). Dean drew on that article in writing this column.

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