The "Nuclear Option"

A January National Review column by former Senate Judiciary Committee Chairman Orrin Hatch, floor remarks by Senate Majority Leader Bill Frist, and op-eds in the Wall Street Journal make it clear: the right wing is mounting an all-out attack on the 200-year-old tradition of the filibuster in the Senate to clear the way for President Bush's most extreme, ultra-conservative nominees to the federal bench and, eventually, to the Supreme Court. To that end, it's obvious they won't let the truth stand in their way.

Hatch called the use of filibusters in the appointment process "unprecedented, unfair, dangerous, partisan and unconstitutional," and said they created a "constitutional crisis." In fact, it is Hatch and Frist who are courting a constitutional crisis of historic proportions through the proposed use of a parliamentary dirty trick – aptly named "the nuclear option" – to prohibit the use of the filibuster. If successful, they will have eliminated one of the only tools for forcing a majority party that controls both the White House and Congress to engage in bipartisan consultation and cooperation.

Despite vigorous claims of Democratic obstructionism through use of the filibuster, a recent Wall Street Journal/NBC News poll found that Americans favor keeping the filibuster for judicial nominations by 48 percent to 39 percent. Frist and Hatch are attempting to create a crisis out of whole cloth. Even the one piece of political evidence that they and others repeatedly cite, Sen. Tom Daschle's narrow loss to John Thune in last year's election, withers under close scrutiny. As NPR's David Welna, who followed the South Dakota race closely, wrote: "I found only one voter who cited the judicial nominations as a reason for voting against Daschle, and that one was Republican John Thune[.]"

But this has not dampened Republicans' enthusiasm for the "nuclear option," which refers to a narrow majority of the Senate circumventing the Senate's rules and declaring that a simple majority can cut off debate on a judicial nominee. Under the Senate's written rules, 60 votes are necessary to end a filibuster – forcing compromise and curbing extremism. On the weighty matter of changing its own rules, the Senate requires a two-thirds vote to end debate. Permitting a bare majority of the Senate to take the unprecedented step of eliminating the filibuster would eviscerate the Senate's responsibility under the Constitution to provide advice and consent on judicial nominees and to be a check on presidential power.

Choosing "Crisis" Over Consultation

The legacy of last year's bitterly fought elections is a still narrowly divided House and Senate and a president elected with a narrow majority of the popular and electoral vote. Republican leaders of the House and Senate as well as the president in the days after the election spoke of compromise and healing the nation's divisions. Newly elected Senate Minority Leader Harry Reid of Nevada took the president at his word. He called for returning the judicial nominations process to its traditional cooperative route and restoring "advice" to the advice and consent clause through bipartisan consultation on nominations. This is not a radical notion. In 1993, President Bill Clinton sought Hatch's advice and input on potential Supreme Court nominees before making a nomination.

Yet both the White House and Senate Republican leaders have chosen to ignore the outstretched hand of cooperation. Instead, by threatening use of the "nuclear option" on the opening day of the 109th Congress in his "welcome" remarks on the Senate floor, Frist launched a deliberate and pre-emptive assault on bipartisanship. His early belligerence signals Republicans' intentions over the next four years to reject a strategy of seeking consensus on the critical issues facing the nation, and instead try to rule the country from the narrow political base of far-right groups and constituencies.