Everything you wanted to know about the "nuclear option"

But there must be something different in the way that the Democrats are blocking Bush's nominees, right? The Republicans say that what the Democrats are doing is "unprecedented."

Oh, yes they do. Just the other day on Fox News, Utah Sen. Orrin Hatch, the former chairman of the Senate Judiciary Committee, proclaimed: "We've never had a filibuster of judges in the history of this country." In a myth vs. fact sheet, the Republican National Committee says that "having to overcome a filibuster (or obtaining 60 votes) on judicial nominees is unprecedented."

But that's not a fact. In 1968, Republicans led a filibuster against Lyndon Johnson's nomination of Abe Fortas as chief justice. And that isn't the only Republican attempt to filibuster a judicial nominee in recent history. During the Clinton years, the Congressional Research Service says, Democrats were forced to bring cloture motions on six judicial nominees. While the existence of a cloture motion doesn't always mean that a filibuster is in effect, in at least some instances it has meant just that: In 2000, Frist himself voted to support a filibuster against Richard Paez, Clinton's nominee to the U.S. Court of Appeals for the Ninth Circuit.

What do Frist and the GOP say about that?

They've become more and more specific about what it is they're calling "unprecedented." Now, instead of saying that filibusters are unprecedented, Frist says that a judicial nominee "with majority support" has "never been denied" an up-or-down vote. That formulation is closer to accurate, but it's still not quite there. Paez had "majority support," but Frist and other Republicans tried to filibuster his confirmation anyway.

What gives? Frist would say that the Republicans didn't succeed in blocking the Paez nomination, so their efforts shouldn't count against them. It's a sin to succeed in blocking a nomination by filibuster, Republicans say. But trying to block a nomination by filibuster -- as Republicans did repeatedly during the Clinton years? That doesn't count, and to say otherwise would be, in the words of the conservative Committee for Justice, "Orwellian."

Isn't that a little like an attempted murderer lording his morality over a murderer who actually succeeds?

You said it, not me.

Do all Senate Republicans go in for this way of thinking?

Not all of them. Arizona Sen. John McCain and Rhode Island Sen. Lincoln Chafee have already said that they'll vote against the nuclear option, and there are at least six other Republicans who could go either way. Over the weekend, Nebraska Sen. Chuck Hagel seemed to be saying he wouldn't go nuclear, explaining that Republicans' "hands aren't clean" on judicial nominees, either.

Does that mean Republicans didn't always provide up-or-down votes on Clinton's judicial nominees?

That's right, they didn't. As Hagel noted, Republicans prevented approximately 60 of Clinton's judicial nominees from ever getting a hearing from the Senate Judiciary Committee. They didn't have to use filibusters to block floor votes on the nominees because they never let them get that far in the first place.

Why can't Democrats do the same thing to Bush's nominees?

In large part because Hatch changed the rules of the Judiciary Committee. When Clinton was president and Hatch controlled the committee, a judicial nomination could be put on permanent hold if a single senator from the nominee's home state objected to its going forward. But in 2003, Hatch changed the rules to make it harder for a single Democrat to block a Bush nominee. Under Hatch's new formulation, "blue slips" couldn't stop a nomination unless both senators from the nominee's home state submitted one -- and he wavered on whether he should consider himself bound by the "blue slips" at all.

Now Arlen Specter is the chairman of the Senate Judiciary Committee, and he has started to move some of the stalled nominees through the committee so that they'll be teed up for floor votes -- or at least for filibusters over floor votes. And unless somebody blinks before then, that means the nuclear option could come to a head as early as next week.

But aren't there rules about changing the rules in the middle of the game?

Yes, there are. Senators may amend the Standing Rules of the Senate by a simple majority vote. But -- and you saw this coming, didn't you? -- proposals to change the Senate's rules are subject to filibuster, too. So if Republicans simply followed the rules about changing the rules, and if Democrats filibustered the rule change, as they surely would, then Republicans would need to cobble together enough votes to prevail on a cloture motion.

That's 60, right?

Well, no. While it takes three-fifths of the Senate, or 60 votes, to cut off debate on most things, the Senate has previously recognized that changing the rules of the game should require something more. Thus, Senate Rule XXII says that debate on a "a measure or motion to amend the Senate rules" can't be cut off without an "affirmative vote" from "two-thirds of the Senators present and voting." That means that Frist would need 67 votes to cut off debate on a change in the Senate's rules. With only 55 Republicans in the Senate, and at least two of them unequivocally opposed to the nuclear option, Frist can't possibly get 60 votes to change the Senate's rules, let alone the 67 that Rule XXII requires.

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