Everything you wanted to know about the "nuclear option"

If the Republicans are as good as their word, it's going to be much uglier than you think.

By Tim Grieve

May 12, 2005 | To hear the partisans on either side describe it, the coming debate over Bill Frist's plan to kill the filibuster is a thing of apocalyptic proportions. Focus on the Family's James Dobson says the ground in Washington is "almost too hot to walk on" right now, that the faithful are in their "foxholes" and the "bullets are flying overhead." Democratic National Committee chairman Howard Dean says Republicans are fixing to "blow up 200 years of Senate history" just because they're not getting their way on a handful of "radical" judicial nominees. On Capitol Hill, the threat of the "nuclear option" has created a sort of political ground zero, and activists on both sides believe that the way this thing plays out will control the shape of the federal judiciary -- and with it, the interpretation of the U.S. Constitution -- for decades to come.

Out there in America, it's a different story. The latest Gallup Poll reveals that only 35 percent of the country admits to following the filibuster fight closely -- more than will fess up to watching the Michael Jackson trial closely, but a little fewer than the percentage who claimed to be paying attention to the situation in Kosovo in 1999.

So if you haven't been giving your undivided attention to Priscilla Owen, Abe Fortas -- he's dead, but he plays into this -- and the intricacies of Senate Rule XXII, you can feel proud that you're right in the middle of the American mainstream. But now it's time to pay attention. A vote on Frist's "nuclear option" may come as early as next week, and we're here to help you get up to speed.

Call it a primer on the judicial confirmation process. Call it what you get when you spend way too much time reading Riddick's Senate Procedure. Just don't call it the "nuclear option" -- at least not when Bill Frist is around to correct you. The Senate majority leader doesn't want his plan to sound so explosive, but be forewarned: Unless somebody blinks first, we're in for a mind-warping set of unprecedented Senate maneuvers that could put Dick Cheney in charge of deeming the filibuster "unconstitutional" -- without a word from those folks in black robes across the street -- and grease the way for each and every right-wing extremist George W. Bush ever cares to put on a district court, an appellate court or the U.S. Supreme Court.

OK, let's begin at the beginning. What's the "nuclear option"?

It's Frist's plan to change the Standing Rules of the Senate in order to prohibit Democrats from using the filibuster to block votes on Bush's judicial nominees. Under the current rules, senators in the minority can indefinitely delay a floor vote on judges -- or on just about anything else, for that matter -- by engaging in extended debate.

The Senate's rules have allowed unlimited debate, or filibusters, since 1806, when senators dropped a rule that allowed a majority of the Senate to put an end to discussion and call for a vote. For the next 111 years, there was no way to stop a filibuster once it had started. But in 1917, when filibusters were blocking Woodrow Wilson's plans for World War I, the Senate adopted Rule XXII, which allowed senators to end a filibuster by a two-thirds vote on a motion to cut off debate -- a procedure called "cloture." In 1975, the Senate amended Rule XXII so that cloture required, in most cases, the vote of not two-thirds but rather three-fifths of the senators. In today's 50-state, 100-member Senate, that means it takes 60 rather than 67 senators to put an end to most filibusters.

With the nuclear option, Frist and his supporters would effectively change that rule so that filibusters on judicial nominees could be cut off by a simple majority vote.

Why is it called the "nuclear option"?

The Republicans don't call it the "nuclear option" -- well, at least they try not to call it that anymore. Trent Lott, who is a Republican if there ever was one, was the first to apply the term to the GOP plan, a recognition that killing the filibuster would be an explosive move in the Senate -- a body that has always prided itself as a place that cools the passions of the House of Representatives and keeps an eye out for the rights of the minority. The name stuck, and Republicans used it frequently.

But at some point along the line, the usually masterful GOP message mavens figured out that a "nuclear" option didn't sound very appealing. So Frist began correcting reporters who used the term, urging them to use the more palatable "constitutional option" instead.

The tactic has worked. As Media Matters has noted, reporters now frequently say that the "nuclear option" is what "Democrats call" the attempt to kill off the filibuster. And NBC's Chip Reid got himself so spun around the other day that he said that the "nuclear option" refers to the steps Democrats might take to retaliate if Republicans kill the filibuster. Frist spins things a different way still: He says the "nuclear option" is what the Democrats "did to me last year when they changed the precedent" on the handling of judicial nominees.

What did the Democrats do to Bill Frist?

Frist is upset that Democrats have used the filibuster to block a handful of Bush's judicial nominees. Democrats have allowed 205 of Bush's judicial nominees to be confirmed, but they have used the filibuster -- or, more accurately, the threat of the filibuster -- to prevent floor votes on 10 others. Bush offered all 10 of the nominees who were stalled in the last session of Congress the chance to be nominated again. Seven accepted, Bush renominated them, and Democrats have indicated that, except as some kind of compromise on the nuclear option, they'll block them again this session.

Democrats have allowed 205 to be confirmed and now are blocking only seven? That's not so bad, is it?

No, it isn't. According to an analysis by the nonpartisan Congressional Research Service, Bill Clinton nominated 443 judges to U.S. district and appellate courts, and only 372 of those nominees were confirmed. George H.W. Bush got only 192 of his 242 nominees confirmed. Ronald Reagan went 375 for 403.

President Bush's numbers look pretty good by comparison. But the Republicans say those are the wrong numbers to consider, that one should consider the confirmation rate only for the judges that Bush has nominated to the U.S. Court of Appeals, the level of the federal judiciary one step above the district courts and one step below the Supreme Court.

So let's look at those numbers. Bush has nominated 52 judges to appellate courts, and the Senate has confirmed 35 of them. (Democrats used the filibuster or the threat of filibuster to block 10, and seven other nominations were returned to the White House for other reasons.) How does that compare with, say, Clinton's record? It's almost identical. In his second term, Clinton nominated 51 appellate court judges. The Republican-controlled Senate confirmed 35 of them. Overall, the Congressional Research Service says that Clinton went 65 for 91 on nominees to appellate courts -- a .714 batting average that's not a whole lot different from Bush's .673. And Bush would actually out-hit Clinton if Frist and other Republicans accepted a nuclear option-averting compromise plan now under discussion on Capitol Hill.

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