It looks like the right has rechristened "The Nuclear Option" as "the Constitutional Option." I heard that being used repeatedly on a Family News in Focus piece this morning, prompting some bedroom conversation this morning.
On one hand, it's good PR, not unlike nicknaming the estate tax the "death tax." However, it is rather disingenuous and misleading.
Repeat after me-Democratic filibusters of conservative judicial nominees are constitutional. They may well be wrong, but they're constitutional. Article I, section 5, clause 2 of the United States Constitution says that "Each House may determine the Rules of its Proceeding...."
Currently, the Senate has a rule that allows for unlimited debate unless 60 senators vote for cloture. That number isn't in the Constitution and has been shifted downward over the years. The rule has gone from no cloture to needing two-thirds to needing 60 votes, the last change being made to shut up segregationists wanting to stall civil rights legislation.
It's within the Senate's purview to change that rule. I don't see Sandra O'Connor or Anthony Kennedy saying that the 60-vote rule has now been written in stone; Teddy might, but Anthony wouldn't. Thus, what the Republicans are proposing to invoke cloture with a simple majority is a constitutional option.
Keeping the 60-vote status-quo is also a constitutional option. The status-quo isn't unconstitutional. Anti-majoritarian, yes, but not unconstitutional. Thus, I don't like the marketing of the change in cloture; it isn't the one-and-only constitutional option.
That doesn't mean it's a bad idea, even though its marketing leaves a bit to be desired.
The problem lies with a change in tactics in modern politics, to be more willing to be confrontational and go to the mat. That change isn't just on the liberal side of the aisle, it just seems to be more pronounced there. Let's look at this paragraph on the Bolton nomination with a little added italics
Chafee isn't likely to bury Bolton. The senator believes presidents
deserve to pick their advisors, absent some overwhelming reason to the
contrary. Chafee was appointed to the Senate in 1999 after the death of
his father, John Chafee, and elected in 2000. In that brief Senate
career, the younger Chafee has voted to confirm every executive branch
nominee he's considered for both Presidents Clinton and Bush.
That used to be the norm in the Senate. You'd usually get some yahoo wingers from the opposition voting against the president, but judicial nominees and cabinet nominees would usually slide through 90-10, or if someone was a staunch winger of the President's party, maybe 80-20. Only when the guy had a conflict of interest or was really off in left or right field would there be a real nomination fight.
There's been an escalation of what would qualify one for being a wingnut. One could trace the modern trench warfare on nominations back to Robert Bork, someone who'd have been a 80-20 nominee in a more genteel era, but got shot down by a more ideological Senate. With Bork being the "Remember the Alamo" of the right, the Republicans ratcheted the machine-gun fire a bit more in the Clinton era, stopping some of Clinton's more liberal nominations, sometimes by majority vote but often by holing up the nominations in committee.
The Democrats have now started adding the mustard gas of the filibuster to the judicial trench warfare. No, the Republicans aren't lily-white on filibusters, but they seem to be trotted out much more routinely than in the past. Rather than a fire-breathing conservative like Bork being the demarcation of a all-out nomination fight, a garden-variety conservative that opposes liberal doctrine on affirmative action, abortion or church-state boundaries will be given a borking.
The end of the filibuster isn't the constitutional option, but it's a constitutional option. Forcing a 60-vote majority to get routine things done isn't written into the constitution; there are super-majorities for passing a constitutional amendment, for approving a treaty and for convicting an impeached office-holder, but the 60-vote cloture rule isn't written in stone, and given the change in tactics on the left, it's time to ditch it.
Will that mean that a future liberal legislature can ram through Justice Larry Tribe? Yep, but they could "go nuclear" in 2013 even if we don't in 2005.
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