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'Nuclear Option' Possible in Alito Battle, Frist Says

December 12, 2005|Richard B. Schmitt | Times Staff Writer

WASHINGTON — The Senate's top Republican, raising the stakes in the battle over Supreme Court nominee Samuel A. Alito Jr., said Sunday that he would support a controversial rule change to prevent Democrats from stalling the nomination.

Majority Leader Bill Frist (R-Tenn.) told "Fox News Sunday" that he would not hesitate to invoke what is known as the "nuclear option" if Democrats sought to filibuster Alito's nomination.

"Supreme Court justice nominees deserve an up-or-down vote, and it would be absolutely wrong to deny him that," Frist said.

The statement amounts to a shot across the bow in the debate over the veteran federal appellate judge, picked by President Bush to succeed retiring Justice Sandra Day O'Connor.

The nomination has triggered concern about Alito's record on abortion and civil rights. But it is far from clear how many Democrats will oppose him, and it appears many have yet to make up their minds.

Jim Manley, a spokesman for Senate Minority Leader Harry Reid (D-Nev.), said that Frist's comments were premature and that senators should be debating Alito's qualifications rather than mapping political strategies.

The Senate Judiciary Committee is set to take up the nomination next month, and Manley said in an interview with Associated Press that Democrats would wait until the committee considered the nomination before deciding what to do.

"All procedural options are on the table," Manley said. "But we are months away from facing these kinds of decisions."

At issue is an unusual parliamentary maneuver in which Republicans could seek a ruling from the chamber's presiding officer, Vice President Dick Cheney, that would declare filibusters against judicial nominees unconstitutional. They believe they could uphold such a ruling with a simple majority, or 51 votes, a less daunting requirement than the 60 votes needed to end filibusters. Republicans hold 55 of the Senate's 100 seats.

The "nuclear option" (called the "constitutional option" by its proponents) is so-called because of the damage that some say it could do to the daily business of the Senate, much of which depends on a fragile comity. It could also set a dangerous precedent, critics have said, possibly leading to the erosion of minority rights in the chamber, which could backfire on Republicans if they lost majority control.

Frist has been a leading proponent in the Senate of using the tactic to thwart what Republicans have viewed as Democratic intransigence when it comes to considering Bush administration appointees to the federal courts.

How much support the leader has for such a maneuver, even within his party, is unclear. Earlier this year, a bipartisan group of senators constructed a last-ditch compromise under which Democrats agreed to embrace some of Bush's most controversial lower court nominees. The deal had the effect of defusing the rules issue.

But with Alito poised to be the new swing vote on a court that is closely divided on abortion and other issues, the issue could flare anew.

Democrats and others have questioned arguments that Alito put forward as a Justice Department lawyer in the 1980s suggesting opposition to the court's 1973 Roe vs. Wade decision that established a woman's right to an abortion. Civil rights groups have also questioned some of his rulings that they say show a bias in favor of law enforcement and the government when it comes to the rights of criminal defendants.

But Frist said Alito was eminently qualified, citing his 15 years on the federal bench and describing him as someone of "modest judicial temperament." A Democratic filibuster, Frist said, would be "unconscionable" and "wrong."

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