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The Nuclear Options Republicans May Use to Stop Senate Filibusters of Court Nominees

Duncan Currie, in the Weekly Standard (12-6-04):

THE SENATE'S COLD WAR over judicial nominations is at a crossroads. With a newly minted chamber taking office January 4, and a new minority leader already designated, the time seems ripe for a fresh start. The Republican majority wants an end to all active Democratic filibusters of appellate court nominees and the cession of such tactics in the future. Will the opposition comply?

The answer hinges on two unknowns: first, what lessons Senate Democrats draw from the 2004 election; second, the tone set by their new leader, Nevada senator Harry Reid. Retiring senator Bob Graham has predicted "less willingness" among Democrats "to participate in a filibuster" of circuit court nominees, and Reid claims Republicans are "crying wolf." "My position is this," Reid told reporters on November 16. "Two hundred and three federal judges were approved--203. Ten were turned down. Does that require any kind of a 'nuclear option'? I would certainly think not." Republicans hope for judicial d├ętente. But they're prepared to "go nuclear."

Not that all GOP senators would use that term. Many prefer the gentler "constitutional option." Whatever the nomenclature, at issue is a controversial parliamentary maneuver. Essentially, Republicans would alter Senate procedure on judicial confirmations in order to prevent filibusters.

Just how they'd do so is unclear. The nuclear option could take several shapes. For instance, GOP senators might seek to officially change Senate rules. Or, they might simply reinterpret Senate precedent. In one widely discussed scenario, Republicans would secure a ruling from the chair that would allow them to obtain cloture on judicial nominations by majority vote. When this decision came down, Democrats would appeal. Republicans would need 51 votes (or 50 plus Vice President Cheney) to table the appeal and uphold the ruling.

GOP senators have toyed with such ideas for almost two years, but they didn't have enough votes. In a de facto 51-49 Senate, there weren't enough Republicans on board. The chief GOP holdouts were Susan Collins, Lincoln Chafee, and Olympia Snowe, while John McCain and Arlen Specter were leery. McCain and Specter are still hedging, but that might not matter. With Senate Republicans soon to be brandishing an effective 55-45 majority, they could have the votes to move forward regardless....