Conservatives Without Conscience

Because the filibuster is a negative procedure, and one that frustrates the will of a simple majority, those trying to force something through the Senate with something like a “one-vote victory” will often complain about how the minority is tying up the Senate. While such opposition has given it a bad reputation, the minority party must be able to rely on it to prevent the tyranny of a bare majority. In its present form it is, in essence, a minority veto. To overcome it requires a supermajority—a supermajority the Republicans do not currently command. Accordingly, authoritarian conservatives in the Republican ranks of the Senate, many of whom once served in the House, where a simple majority always prevails, want to change the rules. But because they do not have the two-thirds support necessary for doing so, Republicans are prepared to rely on a parliamentary gimmick that would drastically change the nature of the Senate, by eliminating the Senate’s unlimited debate for judicial nominees, which could then be extended across-the-board. It is so radical, and with such potentially devastating consequences for this traditionally highly cooperative and collegial body, that it is viewed as certain to create the equivalent of a “nuclear winter,” and for that reason it is called the “nuclear option.”

The possible use of the nuclear option first arose when the Democrats lost control of the Senate following the 2002 election, and President Bush started sending it increasingly hard-right nominees for federal judgeships. Democrats decided that their best option was to do what Republicans had done when Democrats controlled both Congress and the White House. During the 1968 presidential campaign, President Lyndon Johnson nominated two liberal justices for Supreme Court seats, proposing to move Abe Fortas from associate justice to chief justice and then to place Homer Thornberry in Fortas’s seat. Senate Republicans filibustered the Fortas nomination, which gave the next president, Richard Nixon, the opportunity to appoint a new chief justice. But when Democrats adopted that strategy and started filibustering Bush’s lower-court nominees to prevent him from packing the federal judiciary with right-wing judges and justices, conservatives became furious. Republicans refused to treat this as fair play, even though during the Clinton presidency, Senate Republicans had blocked votes on judicial nominations by simply refusing to process them, which meant some sixty Clinton nominees never even had a hearing before the Senate Judiciary Committee. But when Democrats sought to block Bush’s nominees, Republicans refused to treat this as fair play.

Here is how the nuclear option would work, as explained by The Hill, the newspaper that covers Congress. Rather than seek a vote to change the rules of the Senate, which they would lose since they do not have a two-thirds majority, Republicans would seek a ruling from the presiding officer of the Senate—most likely Vice President Dick Cheney, who is the president of the Senate—that Rule XXII, the cloture vote rule, does not apply to so-called executive matters such as judicial nominations submitted to the Senate by the president, but only to legislative business. Republican senators would likely argue that filibustering the president’s business, which consists of matters on the “executive calendar” such as nominations and treaties, would be a violation of the separation of powers. Needless to say, such a procedural ruling would be contrary to long practice, but Cheney would almost certainly give the GOP members exactly what they want, and Democrats would have little recourse. It takes only a simple majority to override a ruling of the presiding officer, but the Democrats do not have one. Nor could the Democrats follow the Killer D’s example in Texas by simply walking out, for the fifty-one Senate Republicans could run the Senate in their absence with more than enough senators for a quorum.