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Byrd's nuclear option
Townhall.com ^ | December 20, 2004 | Robert Novak

Posted on 12/19/2004 9:43:04 PM PST by guitarist


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Byrd's nuclear option
Robert Novak (archive)

December 20, 2004 | printer friendly version Print | email to a friend Send

WASHINGTON -- A scenario for an unspecified day in 2005: One of President Bush's judicial nominations is brought to the Senate floor. Majority Leader Bill Frist makes a point of order that only a simple majority is needed for confirmation. The point is upheld by the presiding officer, Vice President Dick Cheney. Democratic Leader Harry Reid challenges the ruling. Frist moves to table Reid's motion, ending debate. The motion is tabled, and the Senate proceeds to confirm the judicial nominee -- all in about 10 minutes.
 
This is the so-called "nuclear option" that creates fear and loathing among Democrats and weak knees for some Republicans, including conservative opinion leaders. Ever since Frist publicly embraced the nuclear option, he has been accused of abusing the Senate's cherished tradition of extended debate. In truth, during six years as majority leader, Democrat Robert C. Byrd four times detonated the nuclear option to rewrite Senate rules.

 Thus, Frist would set no precedent, would not contradict past Republican behavior and would not strip the GOP of protection as a future Senate minority. The question is whether Republican senators will flinch from the only maneuver open to confirm Bush's judges.

 The unprecedented Democratic plan to filibuster judicial nominations that do not meet liberal specifications has exceeded all expectations. None of 10 filibustered Bush appellate court nominees has been confirmed, and another six are all designated filibuster victims. This is intended to have a chilling effect on Bush in filling Supreme Court vacancies.

 All 16 of these nominees are dead under present procedures. Even with the net gain of four Republican senators in this year's elections, Frist falls short of the 60 votes needed to cut off debate. After early skepticism, I have come to agree with Frist's conclusion that the old-fashioned filibuster-breaker of round-the-clock sessions is a non-starter. Today's Republican senators lack the will to undergo this ordeal. They would have to maintain a heavy presence on the floor while a single Democrat could hold forth.

 Frist drew a line in the sand Nov. 11 in addressing the conservative Federalist Society: "One way or another, the filibuster of judicial nominees must end." The way he indicated was a rules change -- the nuclear option.

 That generated speculation that, when the new Senate convenes on Jan. 4, the Republican leadership will propose a rules change. Reid, the Senate's reigning master of parliamentary tactics, has promised to "screw things up" by bringing the chamber's activities to a standstill. Frist would only tell me he wants "a full set of options, ready and available." However, Senate sources believe Frist will bide his time on opening day and wait to make a point of order to change the rules.

 This is precisely what Byrd did as majority leader, as explained in an article by Martin Gold and Dimple Gupta to be published in the January issue of the Harvard Journal on Law and Public Policy. They wrote that Byrd "developed four precedents that allowed a simple majority to change Senate procedures governing debate without altering the text of any standing rule." In each case, Byrd successfully overcame dilatory tactics by the Republican minority.

 It remains an open question whether Frist can mobilize Republicans as effectively as Byrd commanded Democrats to get even 51 votes. The "New England Three" of liberal Republican senators from Maine and Rhode Island may vote no. John McCain and Chuck Hagel have misgivings, with Hagel recalling the dark Republican days of the '70s when only a handful of Republican senators stood up against the Democratic tide.

 Most worrisome to Frist is criticism from respected conservative voices -- George F. Will and the National Review -- that the nuclear opposition undermines a bulwark of limited government. But Republicans never have employed the filibuster to block liberal judges. The failure to confirm Lyndon Johnson's nomination of Abe Fortas as chief justice was caused not by a Republican filibuster (as is now claimed), but by inability to get a majority of votes in a heavily Democratic Senate. Using the filibuster to block judges is something new, and the Frist scenario looks like the only way to end it.

©2004 Creators Syndicate, Inc.

Contact Robert Novak | Read Novak's biography

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TOPICS: Constitution/Conservatism; Culture/Society; Front Page News; Government; Miscellaneous; News/Current Events; Politics/Elections
KEYWORDS: bobbybyrd; filibuster; fillibuster; frist; judicialnominees; novak; nuclearoption; robertbyrd; scotus; supremecourt
GREAT analysis. Meditate on it (after meditating on Scripture!)
1 posted on 12/19/2004 9:43:04 PM PST by guitarist
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To: guitarist

It's coming down to bottom-line-time: Bush WILL appoint a rather conservative justice. The Demos from Hillary to Obama to Bayh WILL fillibuster. We will--as far as I can tell--lose unless we go nuclear. Can anyone--any of you NR editors lurking here--demonstrate otherwise??


2 posted on 12/19/2004 9:45:21 PM PST by guitarist (commonsense)
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To: guitarist

The Pubbies better keep their spines straighteded, they're going to need them.


3 posted on 12/19/2004 9:46:52 PM PST by Libertina (Dino Rossi WON the election TWICE!)
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To: guitarist

I'm hoping Frist has the jewels to do it. What he needs to do is push the button and drop the nuke. Does anyone think that the democrats would hesitate at doing something like this? Why no, because THEY'VE ALREADY DONE IT.

I need to send my tagline in an email to Sen. Frist and then hope to God above that he understands it.


4 posted on 12/19/2004 9:48:16 PM PST by MissouriConservative ( Do your duty in all things. You cannot do more; you should never wish to do less. - Robert E. Lee)
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To: guitarist
"Can anyone--any of you NR editors lurking here--demonstrate otherwise??"

It is a great piece of good journalism by Novak.

Now, do we have to go nuclear to win confirmation of Bush's judges? No.

The other alternative (besides recess appointments) is to simply write in their confirmation on the line item for each proposed Justice's federal salary in the federal budget.

The budget can't be filibustered, after all.

Poof! No filibuster and the judges are all approved.

5 posted on 12/19/2004 9:49:57 PM PST by Southack (Media Bias means that Castro won't be punished for Cuban war crimes against Black Angolans in Africa)
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To: guitarist

Frist does need to count heads though. If he calls for a vote to go nuclear, he needs 50 plus vice prez Cheney to prevail. If the 3 New Englanders, McCain, Hagel and just one more (Specter, Warner, Lugar, etc.) defect, we lose everything. Let's encourage Bro. Frist to do his homework and win this thing!


6 posted on 12/19/2004 9:50:55 PM PST by guitarist (commonsense)
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To: Southack

That's a lovely gimmick, but I don't think it would fly. If you're gonna do that with only 51 votes, you might as well go nuclear with 51 votes, as everyone knows that is legit.


7 posted on 12/19/2004 9:52:23 PM PST by guitarist (commonsense)
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To: guitarist

No, it's legit to write in to the federal budget the Senate's sense of approval along with the money being spent on what they approve.

8 posted on 12/19/2004 9:54:37 PM PST by Southack (Media Bias means that Castro won't be punished for Cuban war crimes against Black Angolans in Africa)
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To: guitarist
If the 3 New Englanders, McCain, Hagel and just one more (Specter, Warner, Lugar, etc.) defect, we lose everything.

One would hope that Frist has a clear "understanding" with Specter.

9 posted on 12/19/2004 9:54:46 PM PST by okie01 (The Mainstream Media: IGNORANCE ON PARADE)
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To: guitarist

Indeed a great article - thanks for posting it.

I do not understand Republican "fear" in using this tactic.

No amount of playing nice is going to reach the Democrats - or else they wouldn't be filibustering to began with...

Honestly, most of the public doesn't care either way. So let the Dem's cry and whine after the "nuclear" option is used.

And there *will be* a political price to be paid if the Republicans do not get strict constructionists appointed to the SC when the time comes.


10 posted on 12/19/2004 9:59:03 PM PST by swilhelm73 (Dowd wrote that Kerry was defeated by a "jihad" of Christians...Finally a jihad liberals oppose!)
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To: guitarist

The Klan has the bomb?


11 posted on 12/19/2004 10:03:17 PM PST by ozzymandus
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To: ozzymandus
The Klan does not have the bomb.

But there can be no doubt that Robert C. Byrd is named after a bridge in West Virginia.

12 posted on 12/19/2004 10:20:45 PM PST by smoothsailing (Eagles Up !!)
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To: guitarist

"would not strip the GOP of protection as a future Senate minority."

Protection? What protection? The kind Robert Bork got?

I don't want the Republicans to play kissy-face, I want them to drive the dims out of public life and lay waste to the demonrat party.


13 posted on 12/20/2004 12:37:14 AM PST by dsc
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To: Southack

And it's also legit to use the nuclear option!


14 posted on 12/20/2004 3:59:21 AM PST by guitarist (commonsense)
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To: guitarist

With the "nuclear" option we win now and risk losing later. Without it we lose now and lose later. I don't see the problem with a nuclear option.


15 posted on 12/20/2004 4:14:06 AM PST by muir_redwoods
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To: guitarist

back up top...


16 posted on 12/20/2004 4:28:44 AM PST by harpu
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To: guitarist

Frist's ambitions + opportunity = nuke option = conservative court for years to come.


17 posted on 12/20/2004 5:10:51 AM PST by jmaroneps37 ( Frist/ Blackwell in 2008 for a landslide: you saw it here first.)
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To: MissouriConservative

BTTT


18 posted on 12/20/2004 5:17:54 AM PST by Unicorn (Two many wimps around The democrats would rather win the WH then win the war-Tom Delay)
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To: guitarist
It remains an open question whether Frist can mobilize Republicans as effectively as Byrd commanded Democrats to get even 51 votes. The "New England Three" of liberal Republican senators from Maine and Rhode Island may vote no. John McCain and Chuck Hagel have misgivings, with Hagel recalling the dark Republican days of the '70s when only a handful of Republican senators stood up against the Democratic tide.

I'm assuming that 50 votes plus a Cheney tiebreaker is good enough. Could be this is a bad assumption. Could be that Cheney doesn't get a vote on this kind of a motion. Anyone know the rules?

Also - It should be clear now that Specter could easily be the swing vote on the nuclear option. I still believe that trading the judicial chair for his vote is a good trade. If we don't break the logjam then you might as well let Schumer head up Judiciary, the results would be the same.

19 posted on 12/20/2004 5:23:19 AM PST by InterceptPoint
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To: Southack
Odd that he didn't tell us about at least one of the occasions where Byrd purportedly used the nuclear option, isn't it?

It is a great piece of good journalism by Novak.

20 posted on 12/20/2004 5:30:59 AM PST by Ready4Freddy (Carpe Sharpei !)
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To: guitarist
Review our own good friend Congressman Billybob's fine analysis. As he says, "you heard it here first"!

Appointing Supreme Court Justices: The 'Nuclear Option' in the US Senate

21 posted on 12/20/2004 6:17:29 AM PST by Gritty ("A basic definition: Politics is whatever you can get away with, without going to jail"-John Armor)
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To: guitarist

"None of 10 filibustered Bush appellate court nominees has been confirmed, and another six are all designated filibuster victims. This is intended to have a chilling effect on Bush in filling Supreme Court vacancies.

All 16 of these nominees are dead under present procedures. "

bump to you


22 posted on 12/21/2004 8:04:15 PM PST by bayourod (Our troops are already securing our borders against terrorists. They're killing them in Iraq.)
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