Footnotes on the Nuclear Option -- Part II [Updated]

by Kagro X

The news this morning, via Daily Kos:

These officials, speaking on condition of anonymity, said a recent survey taken for Senate Republicans showed 37 percent support for the GOP plan to deny Democrats the ability to filibuster judicial nominees, while 51 percent oppose.

Additionally, the survey indicated only about 20 percent of Americans believe the Republican statement that Bush is the first president in history whose court appointees have been subjected to a filibuster, a tactic in which opponents can prevent a vote unless supporters gain 60 votes. The officials spoke on condition of anonymity, noting the survey data has not been made public [...]

Republican strategists concede their efforts to swing public opinion behind their move suffered in the wake of congressional intervention in the case of Terri Schiavo, the brain-damaged woman in Florida who was being kept alive with a feeding tube. The survey suggested the GOP faces a challenge if it hopes to gain significant public support before moving ahead on banning judicial filibusters.

All this apparently comes from an earlier version of the article, and most has since been edited out for some reason. But it's great news. Still, there's more.

The article, even the current version, also points out a shift in strategy:

One judicial nominee, Idaho lawyer William Myers, already is waiting for a confirmation vote on the Senate floor. But conservatives would rather see the final showdown come over Brown, Owen or U.S. Appeals Judge William Pryor, who was given a temporary appointment by Bush after he was blocked by Democrats.

Conservatives during the last Congress accused Democrats of acting out of racial, religious and gender prejudice in blocking Brown, Owen and Pryor. Brown is black, and Pryor is a Catholic.

The Family Research Council, a conservative organization, has arranged a rally for this weekend in Tennessee to build support for the GOP plan. It accuses Democrats of waging filibusters based on faith. Frist is scheduled to appear by videotape.

Myers's nomination has been cleared for floor action for some time, and it was long anticipated that it would be his nomination that triggered the nuclear option. But clearly, the "Justice Sunday" gambit required a shift in strategies: Myers, a mining and grazing interests lobbyist with no judicial experience whatsoever, simply doesn't fit the "filibuster against faith" meme that Frist and the nucleo-cons were hoping to sell. In fact, there's not even a whiff of the victimhood about Myers that the religious right so thrives on. So they have to move on to Brown, Owen or Pryor, whom they can sell as victims of either racial, religious or gender prjudice. Much more in keeping with their m.o., and it clicks with the invented theme of "Justice Sunday." Perfect.

But in shifting strategies, the GOP also puts some stress on their legal footing. The nuclear option, while it was being sold as the "constitutional option," rested on the notion that an up-or-down vote on nominees was a constitutional requirement, and that the Senate ought constitutionally to be able to change its rules by majority vote.

Having this fight over the Myers nomination at least had the advantage of clarifying the issues, issues the GOP would immediately seek to muddy with their willful ignoring of established precedent, but at least they would start out clearly. The shift in strategy necessitated by Frist's theocratic approach to ending the filibuster (not to mention the results of the above-mentioned poll) shows the Republicans are on much thinner ice than they previously believed. They'll be relying far less on the "constitutional" arguments for the nuclear option, and far more on the thin gruel of "bias" that served them so poorly the first time these nominees were blocked.

Update: The logical wheels are falling off every car in this train (-wreck). Via The Daou Report, I found perhaps the worst and most ham-fisted defense of both John Bolton and the nuclear option yet offered from the right:

Senators Biden and Dodd are applying the same strtegy against Bolton that the Democrats have been successfully using to prevent President Bush from getting his judicial choices confirmed, keep it bottled up in committee. The Democrats are engaging in this tyranny of the minority because there is little doubt that should Bolton's or President Bush's judicial nominees be voted on by the entire Senate the nominations will be approved. Senators Biden, Dodd and Voinovich are abusing the advise and consent function of the Constitution.

Didn't this guy get the memo? Republicans never "filibustered" those 60+ Clinton nominees, because they bottled them up in committee, thus preventing them from coming to the floor and having to use the filibuster to stop them. Therefore, it's not an "abuse" of the Senate's advice and consent role. Or is it only an abuse when Democrats do it? Or only an abuse when Democrats convince Voinovich and Hagel to agree?

Can anybody explain to me how what was shaping up as an 11-7 vote in the Foreign Relations Committee counts as a "tyranny of the minority?" Is this what happens when Gingrich's loopy but marginally believable "slowing the rate of growth is not a cut" logic is left to go feral?

Comments

[RonK, Seattle]

Use our words: "Court-Packing Republicans".

"Court-packing" encompasses the nuclear option, the 50-seat encroachment-by-embargo in Clinton's term, and all the suggestions of judicial impeachment, mass-impeachment, assassination.

Preferred usage is in compound thematic euphony, as in "Privatizing, Downsizing, Court-Packing, Red Ink Republicans".

[Gabriel]

Could someone clarify for me with certainty whether the "nuclear option" would eliminate the filibuster rule entirely, or only with respect to judicial nominations?

[RonK, Seattle]

It would substantially erode the quaint customs of heeding the Parliamentarian, and of enacting Rule changes by 2/3 vote. After that, who can say?

[Kagro X]

Gabriel, if that wasn't clear enough for you, the nuclear option, by its very nature, can eliminate anything a bare majority of the Senate wants to eliminate, whenever they want to eliminate it.

That's what makes it "nuclear." Forget all this crap about it being called nuclear because of what the Democrats might or might not do in response. It's nuclear because it's an unstoppable weapon that can crush any resistance, and once someone uses it once, the door is open forever to anyone who can muster 51 votes.

Frist says he only wants to use it for judicial nominations. But he also says there have never been judicial filibusters before, even though he himself has voted to sustain them in the past. So how far are you willing to go on his word, on any subject? Much less the very one about which he's already lying.

Remember, the "logic" of the nuclear option is that Republicans say it's use is permissible because the Constitution's "advice and consent" clause demands an up-or-down vote. Aside from the fact that this is utter nonsense, what separates the demands supposedly created by the need for advice and consent on judges from the need for advice and consent on any presidential nomination, say, Bolton's?

Nothing at all. In fact, a single, simple turn of phrase in the execution of the nuclear option could eliminate the filibuster for all "executive business" in the Senate, or even for legislative business. It depends only on how Frist phrases his point of order to Cheney, and how Cheney responds. If they agree ahead of time that they want to eliminate the filibuster on everything, they can do it just as easily as they can limit it to judicial nominations.

Feel comfortable?

[Meteor Blades]

The only trouble with your delightful thematic euphony, RonK, is that it takes a hundred more such labels just to catch up with GOP machinations.

[DemFromCT]

You gots to start somewhere, though. "Court-Packing Religious Radical Republicans" has the alliteration loved by Luntz.

[Steve]

Somewhere, there is a dirty joke coalescing involving Santorum and packing the Court.

[Petey]

Well, despite my obvious schadenfreude at GOP difficulties, I'm a sad Petey these days.

As someone who thinks a full elimination of the filibuster is incredibly important for the left going forward, my preferred sequence of events was for Frist to win on the nuclear option on a 50-50 vote, have an enormous backlash leading to big Democratic gains in '06, and set the precedent for a simple majority to eliminate the filibuster on all legislation in the future.

The interesting question now is how Frist gets out of the box he's put himself in. If he can't deliver for the wingnut loonies, he has no raison d'etre in the '08 primaries.

I'm not optimistic that anyone in power is looking at the big picture, but it's a great opportunity for Dems to bail Frist out by offering a filibuster compromise on our terms.

Say something like the measure Tom Harkin offered in 1995, where the number of votes required for cloture decreases from 60 to 50 over a two week or month long period (to ensure extended debate), obviously covering all legislation and not just judges, and not slated to begin until January 2009.

Perhaps that kind of half loaf would provide cover for Frist's personal ambitions (letting him tell the loonies he delivered), along with giving the left what it will need over the next several decades.

(If anyone is interested in why the left should be in favor of eliminating the filibuster over the long-term, Tim Noah had the most recent good explanation.)

[Kagro X]

Thanks for the update on this school of thought, Petey. I'm still not convinced, of course, that there are enough actual conservatives left among the Republicans to put the "filibuster is a conservative tool" argument on solid enough ground to suit me, though.

I was intrigued by what Noah had to say, though, because it reminded me of something I once thought and lived to regret. It was in mid-1994, and I'd been working on Capitol Hill for just about a year and a half. Watching the Republicans, able to continually embarrass the Democratic House leadership, their seeming lack of an agenda of their own grated on me terribly. "F 'em," I thought. "Let 'em take over the House. Let 'em find out what it means to govern! Let the public see that they have no agenda! That'll teach 'em. And then we'll take it right the hell back!"

D'oh.

Ultimately, though, I'm also just not that moved by strict majoritarian arguments for the elimination of the filibuster. The whole point of bicameralism, in my view, was to settle the otherwise irresolvable issues of majority rules vs. minority rights, big states vs. small, etc. I'm still kinda on board with that whole vision thing.

[Petey]

"The whole point of bicameralism, in my view, was to settle the otherwise irresolvable issues of majority rules vs. minority rights, big states vs. small, etc. I'm still kinda on board with that whole vision thing."

Of course, eliminating the filibuster won't eliminate bicameralism...

Even more than Noah's argument about agendas, the persuasive point for me is that the left is reliant on a well-functioning federal government in a way that the right is obviously not.

If the barriers to "making government work" are too high, it plays into the right's permanent campaign to reduce government's role. Gridlock over the long-term is not the left's friend. And given that the Constitutionally mandated House + Senate + President process already sets a higher burden to pass legislation than exists in most democracies, the additional gridlock imposed by the filibuster creates an imposing barrier to a well-functioning federal government.

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Re: your '94 anecdote:

I think anyone who watches politics for any decent period of time goes through the painful realization that not caring about any electoral loss leads to deep regret. And the only way to learn that lesson is the hard way, as the Nader 2000 voters recently learned.

[Kagro X]

It's true, eliminating the filibuster won't eliminate bicameralism. It will, however, leave us with the embarrassing question of what to do with its rotting corpse.