Senate Republicans' Bid to Destroy the Filibuster Option, And Push Through Ultraconservative Federal Judges:
It Seems Likely the "Nuclear Option" Actually Will Be Used

By JOHN W. DEAN
Friday, Apr. 08, 2005

A new political campaign is underway. It was launched this week.

On one side are the Bush White House and Senate conservatives. The White House seeks to pack the federal judiciary with ultra-conservative judges and justices. Ultimately, the goal is to place far-right justices on the U.S. Supreme Court. (Given the age of several justices, and the poor health of the Chief Justice, one or more vacancies are expected at the end of the current term, in June.)

Toward this goal, Senate Republicans - now enjoying a 55-45 majority due to the 2004 election -- are campaigning to end filibustering of such nominations. This would require a Senate rule change - an option that is referred to candidly as the "nuclear option" and euphemistically (by Republicans) as "the constitutional option." If such a change is sought, it will likely happen when one or more of Bush's pending judicial nominees return to the Senate floor this month

Ironically, it is the conservatives who seek to obliterate the Senate's two-hundred- year-old tradition of unlimited debate. Indeed, they are avid about it: On April 4, an assembly of conservative organizations held a briefing at the National Press Club -- doubtless meant to keep the pressure on Senate Majority Leader Bill Frist.

On the other side are Senate Democrats. They are fighting to keep the filibuster precisely so that they can block the Bush White House's nominees. They believe that some of the Bush-nominated ideologues lack the necessary temperament to be a federal judge.

Why the Filibuster Is So Important, and What Its Effect Has Been

If the Republicans win, then whenever a judicial nomination is reported out of the Senate Judiciary Committee, a simple Senate majority vote will result in the confirmation - or failure - of the nomination. That is an extraordinary change in Senate procedure.

Typically, the minority party has used the filibuster threat - in essence, a threat to talk the nomination to death before it can be voted on - in order to ensure that the majority party's nominees have sufficient bipartisan appeal. Only a cloture vote - which requires a 60-vote, three-fifths majority of the Senate - can stop a filibuster.

The result has been either the nomination of moderates or, at least, of judges and justices palatable to the minority party. Given that the judges and justices have life tenure, for the minority party to have this kind of input seems not only reasonable, but necessary. But now the Republicans want the Democrats, currently the minority, to have no input at all.

That is particularly unfortunate given that Senate Democrats represent the majority of Americans - as Washington Post columnist E. J. Dionne Jr. has pointed out. Dionne found, based on July 2004 Census Bureau figures, that the 44 Democratic Senators represent 148,026,027 people, while the 55 Republican Senators represent 144,765,157. (Independent Vermont Senator Jim Jeffords, who votes with the Democrats on such issues, represents 310,697, making the gap even greater.)

The filibuster could hardly be more important than it is at this particular point in history. Congressional Republicans have become a rubber stamp for anything the Bush White House wants. House Democrats have been effectively neutered by the rules of that body, where the majority controls. As a result, Senate Democrats, with their filibuster, are the only check on Bush's bid to impose hard right wing philosophy on the federal judiciary. And Bush is hell-bent on pushing his nominees through: He has resubmitted twenty judicial nominees turned down by the Congress earlier.

Yet ultimately, the issue should not be solely a partisan one. It is an issue of what is in the long-term interest of both parties: Should the minority party (whichever it might be) have a say in federal judicial nominations - including Supreme Court nominations - as it has throughout the history of the Republic? Or should it be utterly shut out?

The issue is also this - and again, it should not be partisan: Should the character of the Senate be changed profoundly and for the sake of a questionable goal.

The Senate has long considered itself a continuing body (only 1/3 of the Senate stands for reelection at any given time). What makes the Senate distinctive is its procedures that force consensus and compromise. But if the "nuclear option" is employed, continuity will be a myth, for the majority will have iron-clad control - and minority members that remain from earlier elections will be, in effect, voiceless when it comes to judicial nominations.

If the ploy succeeds without a public outcry, it will be because the Republicans have once again played Americans for fools -- using blatant distortions and distractions to camouflage the real substance of the debate.

Can the Senate Filibuster Rule Itself Be Changed by A Simple Majority?

Currently, the rules of the Senate permit unlimited debated on judicial nomination - as on all Senate business. But Republicans say they can change this rule, when it comes to judicial nominations, with a simple majority vote.

Are they right? I have discussed this subject in an earlier column; so has FindLaw columnist Vikram David Amar, in his columns of June 13, 2003 and June 27, 2003. Others have now joined the discussion.

Among them are Martin Gold, a Washington attorney who spent many years working for the Senate Republicans, and Dimple Gupta, a moonlighting Justice Department attorney. Gold and Gupta set forth their views in the Harvard Journal of Law & Public Policy, in an article entitled "The Constitutional Option To Change Senate Rules and Procedures: A Majoritarian Means To Overcome The Filibuster."

But these views have also been very effectively rebutted, in an essay by People For The American Way -- which is fighting Bush's court-packing plan tooth and nail -- entitled "No Defense for the 'Nuclear Option'."

And in turn, the Coalition for a Fair Judiciary has offered something of a sur-rebuttal to the work of People For The American Way.

In the end, though, it's important to keep in mind that, in all likelihood, no court will ever resolve this matter. Instead, any federal court would likely refrain from deciding whether the Senate rule change can be accomplished by a simple majority vote, by citing the "political question" doctrine, and concluding that the Constitution assigns the resolution of such questions to the Senate itself.

The War in the Senate: How It Might Play Out

Thus, the real war will occur not in the courts, but within the Senate. This has become a high stakes political game of chicken. It is still not clear whether any side - or both - will avert the clash.

The Democrats do have one final weapon in their arsenal. If Republicans try to remove the filibuster option, then Democrats can try to make the Republicans play by all the Senate's Rules, construed literally. That, in turn, would bring the Senate's business to a halt - save for the barest essentials - and thus, Congress' business as well, for the House cannot pass laws without the Senate.

The Senate operates largely by "unanimous consent," which enables it to waive the myriad rules of procedure. Senate Minority Leader Harry Reid (D NV) has made clear that should the Republicans destroy the filibuster option, he will not "enter into any consent agreements" except regarding matters that affect U.S. troops or are necessary for the continuity of government operations.

In effect, the Democrats have the option of nuclear winter. If they don't rely on this counter-tactic - with the hope of restoring Republicans to their senses - they might as well pack up and go home. No longer would there be an opposition party in the Senate.

"Forgetting" the Fortas Filibuster: Gray's False Claim

The April 4, 2005 media briefing by the conservative coalition campaigning to kill the filibuster - mentioned above -- was broadcast by C-Span. There, former White House counsel C. Boyden Gray, who is chairman of the Committee for Justice (an organization working to turn the federal judiciary to the hard right), spoke. However, he spoke falsely.

Gray claimed that the action by the Democrats in filibustering judicial nominees is unprecedented. Senator Frist had earlier called the action by the Democrats radical.

The reality is that there is plenty of filibuster precedent - and indeed, Frist himself participated in a Democratic nominee's filibuster.

In fact, the Republicans' tactics have become worse than the usual Washington balderdash, claptrap, hokum, drivel, and humbug. Rather, they are a prime example of the subject addressed by the renowned moral philosopher and emeritus Princeton philosophy professor, Harry G. Frankfurt, in his new book On Bullshit (which is climbing the New York Times bestseller list). As the professor states, "The realm of politics [is] replete with instances of bullshit so unmitigated that they can serve among the most indisputable and classic paradigms of the concept." That is precisely the case here.

The nonpartisan Congressional Research Service study found that from 1949 to 2002 thirty-five presidential nominations had been filibustered, including seventeen judicial nominations.

One that ought to have immediately come to mind for Gray was the 1968 filibuster of President Lyndon Johnson's nomination of Abe Fortas to the chief justice position - orchestrated by presidential candidate Richard Nixon. (Nixon worked with Republican Senators, who in turn enlisted Southern conservatives -- Republicans and Democrats alike -- to join them.)

But Gray claimed the Fortas filibuster never occurred because Fortas withdrew his name. In fact, as the website of the U.S. Senate clearly states, the Fortas nomination was filibustered: "Although the [Senate Judiciary] committee recommended [Fortas's] confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination. On October 1, 1968, the Senate failed to invoke cloture [which would have ended the filibuster]." Fortas withdrew his name only when it became clear the White House could not defeat the filibuster.

Finally, according to the well-publicized finding by law professor Herman Schwartz, in March 2000, Majority Leader Frist himself participated in the filibuster against Clinton judicial nominee Richard Paez. (In the end, Judge Paez was confirmed for a seat on the U.S. Court of Appeals for the Ninth Circuit after a cloture vote.)

Even Republicans Should Oppose The GOP's Tactics on the Filibuster

Almost two hundred editorial page writers have expressed deep concern over these GOP tactics - both Bush's bid to pack the federal courts with hard-right conservatives, and Senate Republicans' White-House-supported bid to destroy the Senate's quality as a uniquely deliberative institution.

Among the more illuminating of the editorials is one by Stuart Taylor Jr. -- the legal writer for the nonpartisan National Journal. Taylor counsels moderate Republicans to think twice about joining their fire-breathing brethren.

Taylor notes the Democratic filibusters are merely employing tactics similar to those of Republicans used from 1995 to 2000 to kill some sixty-five Clinton judicial nominations. And he points out that these tactics, "together with Bush's insistence on total victory -- have brought the process to the brink of total war. And unless six or more Republicans show more restraint than anyone else has shown, the war will come." Taylor concludes the stakes do not justify the drastic action of destroying the Senate, and transforming it "into a rump stamp" for any president's judicial selections.

Let us hope Americans - Republicans and Democrats alike - heed Taylor's counsel. If not, then at some point, Americans are going to see the havoc Republicans have caused, and perceive to whom the labels of "radical" and "extremist" rightly belong.

Destroying the Filibuster May Seal Frist's Fate

Senator Bill Frist, in particular, should consider giving up the nuclear option. Frist plainly wants to be President of the United States. But if he pulls the trigger on the nuclear option, that will be the end of his chances.

Certainly, using the "nuclear option" will give Frist an IOU with the hard right. It may even gain him the Republican nomination in 2008 or thereafter. But it will also guarantee that when he runs, he will lose. When the rest of the country understands that it was Frist who was responsible for the destruction of the Senate, his chances for the Presidency will be over.


John W. Dean, a FindLaw columnist, is a former counsel to the president.