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Margaret Talev: The GOP Ponders Using the "Nuclear Option" to Void Filibusters for Court Nominees

Margaret Talev, in the Sacramento Bee (3-9-05):

Given U.S. tensions with Iran and North Korea, "nuclear option" might not have been Republicans' most diplomatic choice of a nickname for the procedure they're considering unleashing on Capitol Hill next month.

In fact, many are cringing at the moniker, preferring the phrase "constitutional option."

Under any name, what they're talking about has nothing to do with foreign policy. It's a maneuver through which the majority party could stop Democrats from using filibusters to block some of President Bush's most conservative judicial picks from a vote by the full Senate.

Last week, speculation swelled over whether the nuclear option will be triggered, as new hearings got under way for nominees whose confirmation votes Democrats blocked during Bush's first term.

This may sound like just another game of inside baseball at a time the nation's leaders could be focusing on terrorism or the economy. But legal experts, advocacy groups and historians say the debate over whether to stop such filibusters cuts to the core of American democracy, raising questions about the system of checks and balances among the executive, judicial and legislative branches of government, and between the majority and minority political parties.

Under the Senate's current rules, it takes a three-fifths vote to stop a filibuster; Republicans control less than that, with 55 of the Senate's 100 seats. The nuclear option relies on the argument that the party in power can change the rules that govern the Senate, and by doing so could create a new rule that shuts off debate with a simple majority vote. Critics say that goes against the deliberative spirit of the Senate, where the two-to-a-state system of representation, rather than one based on population, means the majority party may actually represent a smaller number of Americans than the minority party.

The counterargument is that the Senate has an advise-and-consent role in considering the president's judicial picks, and blocking the majority from voicing its opinion goes against that duty.

Democrats have blocked 10 of Bush's appellate court nominees by filibuster or the threat of one. That's less than 5 percent of the Bush nominees that have been confirmed. But the Democrats' successful defiance of lifetime appointments for people with whom they disagree got so deeply under conservatives' skin that Republican leaders went to the history books and to the Constitution to build a case for why the practice is inappropriate.

They looked to Martin Gold, a former procedural adviser to Senate Majority Leader Bill Frist and a widely recognized authority on the rules of the Senate. Gold and a colleague who was a former appellate law clerk and Justice Department attorney wrote a 66-page article for a Harvard law journal detailing their constitutional option.

They wrote that the filibuster - the practice of endlessly delaying a vote by speechmaking - was not a right set forth by the Founding Fathers but instead came into play in the early 1800s, and that it was seen as a way to modify or block legislation, not to dead-end nominees.

The roots of the nuclear option date to 1917, as President Wilson and his allies in the Senate looked for a way to shut down a filibuster aimed at preventing U.S. engagement in World War I. Instead of a simple majority threshold, senators established a two-thirds vote for cutting off debate. In 1975, under threat of invoking a simple majority vote and rule change, that was relaxed to the three-fifths vote requirement still in place.

"Nuclear" may be an apt descriptor for the threatened but untested option, not just because of the devastating effect it might have on the political climate in Congress, but also because the very idea of it acts as a deterrent to the other side. Gold details several occasions, beyond 1917 and 1975, when the threat of the nuclear option forced the agitating minority to back down....