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Senate's 'Nuclear Option'

Michael Gerhardt is a professor of law at William & Mary Law School. Erwin Chemerinsky is a professor of law at Duke Law School.

December 05, 2004|Michael Gerhardt and Erwin Chemerinsky

The GOP plan to eliminate the filibuster for judicial nominations would do lasting damage to the Senate. Not only do the Republicans hope to do it without following the long-established rules for changing Senate procedure but, if they're successful, they would eliminate a key check, guaranteeing their party's absolute control over Supreme Court appointments.

Filibusters are possible because of a parliamentary rule that allows a minority of senators to keep debate open on any subject; the votes of at least 60 senators are needed to end debate. This reflects the Senate's historic commitments to protecting minority viewpoints and encouraging consensus. Without the filibuster, 51 senators reflecting a minority of the population could pass anything and not bother to consult with the remaining senators, who represent a majority of the population. The filibuster is a key check in our system of checks and balances.

The filibuster is as old as the Senate itself, as Sen. Bill Frist (R-Tenn.) recently noted. The first one was in 1790, when senators from Virginia and South Carolina sought to prevent the location of the first Congress in Philadelphia.

For Republicans today to denounce filibusters of judicial nominations as obstructionist is disingenuous. Republicans used filibusters when they were the minority party -- just as the Democrats do now. In 1968, Sen. Strom Thurmond (R-S.C.) led a successful filibuster blocking the confirmation of Abe Fortas as chief justice and Homer Thornberry as associate justice. During Bill Clinton's presidency, most Republican senators each voted at least once to filibuster one of his judicial nominations.

In President George W. Bush's first term, the Senate has confirmed 203 of his judicial nominations, and Democrats have filibustered only 10. Although Republicans are unhappy with this, it is the highest success rate ever for a president's judicial nominations. Republicans apparently want to give Bush the unique legacy of 100% success in confirming his judicial nominations.

But here's one problem: GOP leaders lack the two-thirds vote needed to change the rules and end filibusters of judicial nominations. Their only chance is called the "nuclear option." It entails procedural moves culminating in a ruling by the Senate's presiding officer -- Vice President Dick Cheney -- declaring filibusters of judicial nominations unconstitutional. Democrats may appeal the ruling to the full Senate, but only 51 votes are needed to uphold it. With 55 members next year, Republicans believe that they will have sufficient numbers to uphold such a ruling. Once the nuclear option is used, the Senate as it has been for more than 200 years will cease to be. The filibuster has had the salutary effect of encouraging compromise, but without it the majority would have no incentive to consult the minority.

What's more, a precedent would be set under which the Senate could change the rules to suit its needs. The Senate would become permanently trapped in a vicious cycle of payback. Even if Democrats were to deny the unanimous consent required since 1846 to schedule floor business, Republicans could do away with those rules too.

The major problem with the nuclear option is that it is a cynical exercise of raw power and not based on constitutional principle or precedent. The deployment of the nuclear option would transform the Senate into a rubber stamp.

Recently, some GOP senators begrudgingly agreed to allow Sen. Arlen Specter (R-Pa.) to become chairman of the Judiciary Committee pursuant to its rules as long as he promised "to support all the president's judicial nominees." But the Senate's duty is not to support all judicial nominations. The Constitution empowers the Senate to give its "advice and consent" on nominations. The president has earned the privilege of nominating federal judges. But the Republicans' triumph on Nov. 2 does not entitle them to ignore Senate rules or to eliminate a "tradition," which Frist describes as uniquely responsible for making the Senate "the world's greatest deliberative body."

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