The immediate danger is past--a stand-down on the so-called "nuclear option" began when the gang of 14 (seven members from each party headed by Republican Sen. John McCain) reached an agreement Monday night. The Republicans agreed to keep the Senate filibuster rule intact, and the Democrats agreed not to join the filibuster effort. Their votes would carry the day.
The result: The nominations of three of five controversial nominees will go to the floor for debate and vote.
The future: The Democrats retained the right to filibuster future judicial nominees under "extraordinary circumstances."
Will the agreement hold? It will at least until the president nominates another Clarence Thomas or Antonin Scalia, as promised during his run for office.
The Democrats will call this an "extraordinary circumstance" and lodge a filibuster. Majority Leader Bill Frist may well disagree, and again call for "nuclear" methods to seat the nominees. So the Senate may well find itself poised once again for nuclear battle.
The final lurch toward uneasy resolution began with the Senate floor debate last week on the nomination of Priscilla Owen to a lifetime federal judgeship. The Republicans proposed a majority vote to close debate on judicial nominations (instead of the current three-fourths vote). That was the "nuclear option," so called because of the consequences on the traditional Senate system of checks and balances and the even graver consequences on Supreme Court nominations and what it might mean to live with a Supreme Court of right-wing zealots.
The Republicans were upset with the Democrats' use of the filibuster to block floor votes on 10 of the more than 200 judicial appointments nominated by President Bush to the Senate for its advice and consent. The Democrats were equally upset when the Republican-dominated Judiciary Committee bottled up 60 or more judicial appointments nominated by President Clinton.
The filibuster is named after pirates who sailed the Spanish Main in small vessels called "filibots," giving them power beyond their size. It was the Republicans' own former majority leader, Trent Lott, who dubbed ending it the "nuclear option." Currently, Senate Rule 22 (the "filibuster rule") requires both a three-fifths majority vote to end debate (60 votes) and a two-thirds vote to amend the Senate rules (70 votes). The "nuclear option" would have substituted a majority vote for the current three-fifths requirement to end debate and simply ignore the two-thirds vote requirement to amend the rule.
Here is how it would have worked. A senator would raise a point of order that further debate on a judicial nomination is "dilatory" and "out of order." The presiding officer--Vice President Dick Cheney--would sustain the point of order, and a majority of the Senate (the Republicans) would sustain the ruling. That's all it would take. The Senate would then vote to give its consent to the nomination.
That would "nuke" the filibuster on judicial nominations. But what goes around comes around, and when the Democrats next gain control, they could use the same tactic when the Republicans attempt to filibuster a civil rights or minimum wage bill.
But the question remains: Why did Republicans think the judicial nomination of a few right-wing ideologues was worth ending the filibuster?
When the Senate first met in 1789, it adopted "Jefferson's Manual," which included a motion to "raise the previous" question and cut off debate. The Senate revised its rules in 1806, and at the insistence of Vice President Aaron Burr eliminated the provision for ending debate. Senatorial "courtesy and dignity" were expected to obviate the necessity of a formal process to limit debate. This expectation was met in full for the next 35 years.
The first filibuster came in 1841 over a bill providing for the appointment of official Senate printers. The first successful filibusters came during World War I, when 11 senators spoke for 33 days against authorizing the purchase of German ships in American harbors and 23 days against arming American merchant ships.
The reaction of President Wilson led to the adoption of Senate Rule 22. On the petition of 16 senators to close debate, it would end the filibuster on the affirmative vote of two-thirds of the senators. That requirement was reduced in 1975 from two-thirds to three-fifths, still a difficult hurdle.
The filibuster is associated in the public eye with marathon debates on public issues: Strom Thurmond holding the floor for 24 hours filibustering the 1957 Civil Rights Act; a tag team of Southern senators taking the floor in shifts around the clock, filibustering the 1964 Civil Rights Act for 83 days; the high drama romanticized by the James Stewart's film Mr. Smith Goes to Washington.
In 1978, Majority Leader Robert Byrd lamented that the Panama Canal treaty was debated for eight weeks, labor reforms for four weeks, a total of "three months out of the year."
The Senate could not afford the luxury of unlimited debate and invented a speechless filibuster. Senators only need inform the majority leader they intend to filibuster an issue, and the Senate moves on to other matters until the majority leader can count on 60 votes for closure (ending debate).
With the advent of the speechless debate, use of the filibuster proliferated. In 1994, Majority Leader George Mitchell complained of a "filibuster frenzy"--there were "more filibusters last year alone than in the first 108 years of the Senate. In the last week of the Senate, Republicans filibustered five consecutive measures I tried to bring up," he lamented.
The filibuster has been used in an attempt to block these Presidential nominations to the bench:
It has been used to block these other nominations:
But the filibuster is best known as the killer of Civil Rights legislation, including the anti-lynching bills of the 1930s, the anti-poll tax bills of the '40s, the fair employment bills of the '50s, the Voting Rights Acts of the '60s, and the equal employment laws.
Even if the Republicans succeed in eliminating the filibuster in connection with presidential nominations, there is no assurance the nominees would reach the Senate floor for an up-or-down vote. The path from nomination to roll-call vote is strewn with pitfalls. In 1998, 225 Clinton nominees were waiting for Senate approval, including Richard A. Paez, whose nomination to the Ninth Circuit was pending for 21 months, and 42 other judges. Also awaiting action were the nominations of Jane Henney to the Food and Drug Commission; James Hormel to the Ambassadorship to Luxemburg; Kenneth Prewitt, direction of the census; and Henry Solone, Solicitor of Labor--all manner of Presidential nominations.
There are several other ways the Senate can deny a nominee an up-or-down vote. Let's count some of them:
One of our colleagues was nominated to the Court of Appeals for the Fourth Circuit, but never received a hearing. Her nomination died at the end of the Congress.
Senator Larry Craig put a hold on all Air Force promotions until the Air Force agreed to base some airplanes in Idaho. More recently, Senators Hillary Clinton and Patty Murray put a hold on the nomination of Dr. Lester Crawford to head the Food and Drug Administration until the agency issued a ruling on the morning after pill.
The meat of the matter is that there are many ways to prevent an up-or-down floor vote on presidential nominations. The Republicans lament the filibuster, but unless they address senatorial courtesy, the blue slip, the hold and the committee delay, one might think they shed only crocodile tears.
A study might conclude that senatorial courtesy requires the president to seek the "advice" of the Senate, as the Constitution requires. Little can be said on behalf of delayed hearings, the blue slip or the hold. After all, the Constitution says it is the Senate (not individual senators) that is to give "advice and consent" to presidential nominations.
A revision of Rule 22 proposed in 1994 by Senators Harkin, Lieberman, Pell and Robb shows one way it might be done. When a petition is filed to close debate on any matter, there must be a vote within 24 hours. If a vote by three-fifths (60) of the Senate is lacking, the necessary affirmative votes on spaced subsequent motions would be reduced by three, until only a simple majority could close debate.
Harkin explained that by allowing this slow ratchet down, the minority would have 19 "legislative days" to focus public attention on the pending matter (about a month of actual time), but in the end the majority could bring the measure to a final vote, as "it generally should be in a democracy," he explained.
Even if a similar reform is considered, the nomination of lifetime judges should be exempted. Legislation (the PATRIOT Act, the bankruptcy bill) can always be reconsidered, revised or repealed. Most of those appointed to high government office--the attorney general, Ambassador to the United Nations--have a limited time for good or evil (depending on the eye of the beholder). But the lifetime appointments of judges pose entirely different risks. No one deserves unreviewed lifetime power to decide the evolving critical issues of the present and future without at least the 60 votes now required by Senate Rule 22.
Daniel H. Pollitt is Kenan Professor of Constitutional Law emeritus at UNC-Chapel Hill.