by Kagro X
Careening down the highway aboard the Nuclear Option Express, heedless of the possibility of a disastrous collision, it seems certain Republicans have just hit upon the idea that it might be a good idea to take a glance up at the road ahead.
'Nuke' could backfire, say some on right
By Jonathan Allen
Some conservatives are worried that a filibuster-crushing Senate rules change could backfire on their movement, ultimately robbing them of a powerful weapon they have used effectively to battle liberals and centrists in the past.
Oh, you don't say?
If Republicans change Senate rules to bypass filibusters and win confirmation for President Bush’s controversial nominees to the judiciary, what is known as the “nuclear option,” these conservatives fear that, should Democrats win the majority in the fall, Republicans would be handing them a powerful weapon that could be used to move pet executive-branch nominees or legislation.
Uh-oh! It looks like "elections have consequences" beyond the immediate gratification of your base, maybe even unintended ones! And what might be the impact of such unintended consequences? Let's ask one conservative parliamentary expert:
That would be devastating, one conservative parliamentary expert warns.
“Everyone, I think, who has ever carried the water for the conservative movement in the Senate believes it’s a horrible idea,” said Mike Hammond, former general counsel to the Senate Steering Committee, the traditional base of operations for Senate conservatives. “Most of us feel that it is functionally impossible to separate filibusters of judges from filibusters of nominees from filibusters of legislation.”
OK, that's just one. How about others? Surely there are other respected conservatives who share Hammond's view, and would be willing to discuss the topic on the record, in order to avoid this devastating outcome.
Several respected conservatives who share Hammond’s view declined to discuss the topic on the record for fear of upsetting powerful senators and interest groups.
But let's go back to the second part of Hammond's comments for a moment:
“Most of us feel that it is functionally impossible to separate filibusters of judges from filibusters of nominees from filibusters of legislation.”
That's a key issue that Republicans have yet to deal with honestly. It was the subject of much speculation on our side of the aisle, though, by a number of people who felt that letting the runaway train of the nuclear option run unimpeded through the station was the best possible strategy. Their argument was that the filibuster is an inherently conservative, even reactionary tool, designed specifically to impede change rather than to foster it, and that that historically weighed against progressives, the agents of change.
But it was my opinion that the argument depended on a now-outdated definition of "conservative" -- one which finds little or no application among today's Republican Senators, who are often as "activist" as the dwindling ranks of the progressives once were. In othe words, Senate Republicans can be as much about change -- radically reactionary change, but change nonetheless -- as progressives ever were. And that can't be counted as a good thing, particularly in the absence of the ability to filibuster their insane, kamikaze plunges into privatization, theocracy, or what have you.
Even so, the theories espoused by Democrats unfazed by the prospect of the nuclear option were not entirely unfounded, at least so far as the mechanics were concerned. And here, Hammond backs them up:
Hammond and others worry that in their zeal to seat more judges conservatives ultimately could lose a powerful tool that has been used, and would surely be used again, to frustrate the legislative priorities of liberal Democratic majorities.
Others have argued that the rules for nominations should be changed but that the method discussed by the Senate Republican leadership — relying on a simple-majority vote on a parliamentary question — would pave the way for the Senate to abandon its rulebook again and again.
So yes, there's certainly an argument to be made on a purely procedural level that eliminating the filibuster may be a good thing. It requires that you ignore the current reality that today's Republicans are not conservatives, but absent that, there was some merit there.
It must also be said, however, that the assumptions made about the possible benefits of the elimination of the filibuster appear not to have taken Republican duplicity fully into account, which is an amazingly dangerous mistake to make, especially given the benefit of an extra year's worth of hindsight. That extra year has revealed to us exactly how far from what the rest of the human race regards as logical consistency the Republican Party is willing to stray for immediate, partisan advantage. The argument of Democratic nuclear option contrarians was that the elimination of the filibuster would throw the doors wide open for a future Democratic majority in the Senate to enact sweeping, progressive change. But who said anything about legislation? John Ensign certainly didn't:
Sen. John Ensign (R-Nev.), however, disagrees. He said in a brief interview last week that legislative filibusters would not be threatened by a rules change on judicial nominations.
“That’s completely different,” Ensign said. “This is something addressed by the Constitution.”
Oh yes. Completely different. In every way that something not at all different and in fact logically inseparable can be different. But there you have it. Republicans protect themselves from the prospect of the future progressive utopia envisioned by nuclear option contrarians by simply declaring its power to end at the fictional border between judicial nominations and everything else the Senate does.
Here's the nugget that begins to hit on the problem:
Many Republican senators say they believe the Constitution guarantees a simple-majority vote to the president’s judicial nominees and refer to the “nuclear option” as the “constitutional option.” They base their arguments on a paper co-written by former Senate aide Martin B. Gold in the Harvard Law Review in support of the maneuver. But critics note the paper does not seek to draw a distinction between judicial nominations and other matters.
This is true. And remember, there were two reasons Republicans offered to bolster their "constitutional" option rebranding effort: 1) the reason Ensign clings to now -- the reading of the Art. II, Sec. 2 requirement of "Advice and Consent" to refer to Frist's insistence on "upperdownvotes," and; 2) the reason Ensign now abandons -- the reading of Art. I, Sec. 5's allowance that "Each House may determine the Rules of its Proceedings" to mean that the Senate may change those rules at any time, by majority vote.
What happened to that second justification? Well, it's been mysteriously dropped. Why? Well, perhaps partially for the reasons discussed in Part III of this series, including the fact that the Harvard Law Review article cited above bases its argument on the assumption that the Art. I, Sec 5 rulemaking power is invokable only at the beginning of a new Congress. But it seems equally clear that it was dropped because of the inconvenient ramifications. Namely, that it erases the distinction between filibusters for judicial nominations and any other Senate business, including routine legislation. If the Senate can change its rules by majority vote, there's nothing to separate the nuclear option for judicial nominations from the nuclear option for anything else.
The proof? Look no further than... the Republicans themselves. Whether it was because they were desperate, or just lazy, it took no longer than six months from the end of the nuclear option crisis for the GOP to begin threatening to resort to its use on legislation.
Senate Republicans prepared a targeted version of the so-called “nuclear option” yesterday as they tried to ensure adoption of a defense-spending conference report that includes a controversial provision opening the Arctic National Wildlife Refuge (ANWR) to oil and gas drilling.
The tactic promises to make the consensus-based Senate temporarily resemble the majority-dominated House.
Whoops! You got your Stevens in my Ensign! No, you got your Ensign in my Stevens!
Yes, that's right. The "tactical nuclear option" noted above (and described in more detail in Part XIX) was the impetus for Senator Ted Stevens' infamous "Hulk smash puny Senate!" tirade, in which he threatened to resign if he didn't get his way. He didn't. And, incidentally, he didn't.
So Stevens says the nuclear option can be used on legislation. Ensign says it can't. What about Jon Kyl? In Part XVIII, we discuss Kyl's floor speech (PDF) in defense of the nuclear option, in which he argues:
[T]he Constitution is clear about the scope of the Senate's power to govern itself. Article I, section 5, clause 2 of the Constitution states that "Each House may determine the Rules of its Proceedings."
Citing the 1892 case of U.S. v Ballin, Kyl discusses the holding and concludes:
The power of the majority of Senators to define Senate procedures is one that exists at all times -- whether at the beginning, middle, or end of Congress.
So it appears that the question of whether or not the nuclear option applies to legislation depends on what day it is. Or at least, which Republican Senator you're talking to.
The only things we can be sure of are these: 1) the argument that the Constitution requires an "upperdownvote" for all judicial nominees died quietly at Republican hands with the Harriet Miers nomination; 2) the argument that Sen. Ensign offered last week has been dead and buried for a year, also killed at Republican hands, and; 3) that duplicitous and opportunistic Republicans (not the conservative ones upon whom the Democratic contrarians' argument depends) will do or say whatever it takes to make sure that the nuclear option is used to get what they want and only what they want, while denying the logical consistency that was supposed to lead to what the contrarian dreamers envisioned.