Thursday, April 28, 2005

NUCLEAR OPTIONS Senate Republicans have expended a lot of energy arguing that the filibuster of judicial nominees is unprecedented and out of step with Senate tradition.

But when you cut through the rhetoric, what's their legal justification for implementing the nuclear option?

The Senate, after all, is an institution bound not just by tradition and precedent, but by rules: It couldn't send a bill to the President that had received only minority support on the floor. Or decide to deny senators from Nebraska the right to vote on farm legislation.

So what's the nuclear option's legal basis?

Republicans have a pair of arguments open to them. And neither is particularly attractive.


First, Republicans could reject the notion that Senate rules persist from one session of Congress to the next: While a 60 vote super-majority may have been required to terminate debate at one time, they might argue, that procedural standard now lacks force because it wasn't re-adopted during the current session of the Congress.

This is an unappealing case to make for a host of reasons. But chief among them is that the Senate has operated--and continues to operate--as if rules passed long ago remain in force.

So it's no wonder that Republicans rarely make this argument explicitly. (That said, Senate Republicans do hint, occasionally, that they shouldn't be bound by disruptive, arcane strictures approved long ago in an entirely different context.)


The second, more promising argument open to Republicans is that the filibuster of judicial nominees is flat-out unconstitutional. When Republicans deign to offer a justification for the nuclear option, this is the one they tend to trot out.

But this rationale doesn't hold much water either, for two reasons.

First, here's Article 1, Section 5, Clause 2 of the US Constitution:

Clause 2: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
And here's Article 2, Section 2, Clause 2:
Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The Senate is allowed to make up its own rules, the Constitution tells us, and judges are appointed with that body's advice and consent.

And so the filibuster of judicial nominees--a parliamentary maneuver protected by the Senate rules--can only be seen as unconstitutional if the word "consent" in "advice and consent" is read to mean "support of a bare majority during a floor vote."

But that seems like a pretty specific reading of a general term. And it's exactly the kind of aggressive, creative constitutional interpretation that we'd expect conservatives, under normal circumstances, to rail against.

So for most of us, that ought to settle it.

But the "constitutional" justification is suspect for a second reason, one that's both more complicated and more important: Contrary to what Republicans in the Senate have been implying, implementing the nuclear option involves more, procedurally, than getting 51 senators to affirm that the filibuster of judicial nominees is unconstitutional.

This fact has been given scant attention by the press, but it's worth taking a moment to unpack.

The problem Republicans face is that constitutional challenges to the rules are themselves subject to filibuster under current Senate rules. And naturally, the nuclear option's opponents are prepared to filibuster this challenge.

So the Republicans, in order to achieve their ultimate goal, will need to rule not only that the filibuster of judicial nominees is unconstitutional, but that the filibuster of constitutional challenges to Senate rules is unconstitutional as well.

(This is a step, incidentally, that the independent, Republican-appointed Senate Parliamentarian has publicly refused to endorse.)

Think about what that means: The Senate, whose rules require a two-thirds majority for rule changes, will have effectively struck down not only a particular rule. By pushing through the nuclear option, it will also have obliterated the procedural framework by which it does business.

Because, in a post-nuclear Senate, it will take only 51 votes to declare any Senate rule unconstitutional, on the one hand, or constitutionally-mandated on the other. To put it simply, in a post-nuclear Senate the rules of the Senate will be whatever 51 senators say they are.

(If this isn't what Sen. Trent Lott (R-MS) had in mind as the "nuclear" aspect of the "nuclear option" when he coined the term, it should have been.)

Republicans will argue, of course, that they don't have anything nearly this ambitious in mind: All they want, they'll tell us, is a narrow, specific procedural change.

But what they want and what they will have achieved are two different things.

I suspect that if just Republicans around the country had a clearer idea about this implication of the nuclear option's implementation, it would be an even less popular idea with Americans than it is today.

UPDATE: Josh Marshall, as usual, has more.

CONTRAPOSITIVE is edited by Dan Aibel. Dan's a playwright. He lives in New York City.