Wampum

Last year, Senate Majority Leader Bill Frist threatened to “go nuclear” over Democrats filibusters of ten of President Bush’s judicial nominees. One version of the nuclear option is described in Human Events:

A document circulating among Senate Republicans and conservative legal circles in Washington, D.C., outlines the plan. "A senator would raise a point of order to close debate on a nominee," it says. "The presiding officer [Vice President Cheney] would sustain the point of order, thereby setting a new, binding precedent. The minority's appeal of the ruling could be tabled with a simple majority vote."

That process would mean that Frist would not need 60 votes to invoke cloture under Senate Rule XXII. In effect, the nuclear option would prevent filibusters of judicial nominees.

Despite the fact that the last Senate included a clear majority of 51 Republican Senators, Frist chose not to use the nuclear option at that time.

The election brought GOP gains in the Senate with their numbers rising to 55. Initially, Frist thought that Democrats, having suffered defeats at the polls, would cease filibustering the most extreme judicial nominees. Frist is reported to have said:

“I’m very confident that now we’ve gone from 51 seats to 55 seats, we will be able to overturn this what has become customary filibuster of judicial nominees,” Frist said.

Harry Reid, the new Senate Minority leader, quickly undermined the basis for Frist’s confidence:

"If they, for whatever reason, decide to do this, it's not only wrong, they will rue the day they did it, because we will do whatever we can do to strike back. I know procedures around here. And I know that there will still be Senate business conducted. But I will, for lack of a better word, screw things up."

When the new Senate convened, Frist had the opportunity to end judicial filibusters by amending the Senate rules by a simple majority vote. Orrin Hatch, writing in Human Events described the process:

A simple majority can adopt such an amendment at the beginning of the next Congress. Rule 22’s overwhelming 67-vote requirement for cloture on amendments to the rules only applies during a congressional session. At the beginning of a Congress, before the Senate has re-adopted existing rules (including Rule 22) by operating under them, its original constitutional rule-making authority takes precedence. A simple majority can exercise that authority, invoke cloture, and amend the rules.

When the new Senate convened, Frist did not seek to amend the rules. He said:

Right now, we cannot be certain judicial filibusters will cease, so I reserve the right to propose changes to Senate Rule 22 and do not acquiesce to carrying over all the rules from the last Congress.”

In fact, Frist knew very well that Democrats had no intention renouncing the use of the filibuster with regard to Bush’s most extreme judicial nominees. He chose not to go nuclear at that time.

Some conservatives were upset at Frist for not amending the rules to prevent filibusters of judicial nominees at the start of the Senate session. One Freeper described Frist as a “pansy” while another described Frist as having caved in to the Demsocrats.

Other conservatives are now looking for a February showdown on the issue.

Frist signaled that the showdown would come in February. "Next month, we'll have the opportunity to restore Senate tradition," he said. "I'll bring one of the President's very capable, qualified, and experienced judicial nominees to the floor. We can debate that nomination. We can vote to support or oppose it. And we must offer the President advice and consent by giving this and future judicial nominees who are brought to the floor up-or-down votes."

Why has Frist so often talked about invoking the nuclear option but balked at actually using it, delaying invoking the procedure at each opportunity?

The simple, logical answer is that Frist does not have the votes. There may be 55 Republican Senators but it appears that neither Frist nor the President has been able to secure the fifty votes needed (with the help of Vice President Cheney’s tie breaking vote) to eliminate filibusters of judicial nominees.

The Washington Post reports:

In recent interviews and statements, four Republican senators have expressed deep reservations about the "nuclear option." At least two others appear to be leaning against it, although less definitively, and several have refused to state a position publicly…

"At this point, it's too close to call," Ralph G. Neas, president of People for the American Way, which opposes Frist's proposal, said Friday. If pushed to the wall, said Neas, who previously worked for two Senate Republicans, a slim majority of senators probably will rebuff Frist because they want to preserve the Senate's uniqueness and not make it "just like the House." …

If five Republicans joined a solid bloc of Democrats, Cheney could break the 50-50 tie in favor of banning judicial filibusters. If a sixth Republican defected, Frist would fall short.

The GOP leader appears perilously close to that breaking point. In recent weeks, four moderate Republicans have criticized the nuclear option in published remarks that their offices confirmed or did not challenge on Friday. Sen. Olympia J. Snowe (Maine) told the Portland Press Herald, "I just don't see how it's going to benefit us, even in the majority, to change it to a simple majority [vote] because ultimately it could create more wedges and political wounds." Sen. Susan Collins (Maine) "doesn't think the nuclear option is a great idea," her spokeswoman, Jen Burita, said.

Sen. Lincoln D. Chafee (R.I.) has said "I'm not in favor" of the option. And Sen. John McCain (Ariz.) recently told CQ Today he would not support the option because "the Senate should not be like the House."

Meanwhile, Sen. John W. Warner (R-Va.) said in a statement Friday: "I have not reached a firm view on the matter. However, I tend to be a traditionalist, and the right of unlimited debate has been a hallmark of the Senate since its inception. Without question, though, I am strongly opposed to the use of the filibuster to block judicial nominations." He said, "I remain to be persuaded that the seriousness of the problem merits such an extraordinary solution," but "the Senate may be forced to take some action to preserve the president's Constitutional obligation to fill [court] vacancies."

Sen. Chuck Hagel (R-Neb.) also has questioned the wisdom of eliminating the minority's right to filibuster, citing times when Democrats ruled the Senate.
At least three GOP senators -- Thad Cochran (Miss.), Ted Stevens (Alaska) and John E. Sununu (N.H.) -- have declined to take public stands on the issue. Democrats hope veterans such as Cochran and Stevens, who have served in the minority, will vote to preserve the filibuster tradition even though they like Bush's nominees.

Three of those Senators, Snowe, Chaffee, and McCain seem set to vote against the nuclear option.

Only one Democrat seems squishy on the issue. The Post notes:

Sen. Ben Nelson (D-Neb.) did not support last year's filibusters of appellate judge nominees, his spokesman, David DiMartino, said, "But when it comes to a Supreme Court nominee, he reserves the option to do so based on the nature of the nominee."

Harry Reid and the rest of the Democratic Party need to make clear to Ben Nelson that while he is welcome to vote for cloture on individual nominees, voting to eliminate all filibusters of judicial nominees would have serious political repercussions for him.

Assuming that Nelson stays within the fold, and that Snowe, McCain and Chafee vote against the nuclear option, Bill Frist needs to obtain four votes from the group of Collins, Hagel, Warner, Sununu, Cochran, and Stevens to get to 50 votes. Those Senators will no doubt face intense pressure to support the nuclear option between now and February.

Bill Frist has proven to be an ineffective Majority Leader. He may not be able to get the votes. That would be good news indeed.