Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Senate Republicans last week launched their Enola Gay, when they started a floor debate on one of the president’s most controversial judicial nominees. Senate Majority Leader Bill Frist is expected to drop the ordinance tomorrow, when he asks the presiding officer (probably the vice president) to shut the Democrats up with 51 votes, rather than with the larger majority that the Senate rules call for. If that happens, the Senate will enter its own atomic age. According to Democrats, this will come complete with its own nuclear winter. As Senate Minority Leader Harry Reid has said, “They will rue the day they did this. . . . I will, for lack of a better word, screw things up.” Actually, he won’t. More precisely, he won’t unless the Republicans let him. Because the nuclear option is actually more artful than most anyone seems to admit. To push the analogy to the breaking point, it’s a bunker buster, or a neutron bomb, or some sort of weapon that will take out the target without much bothering the bully. Truth to be told, the name that Republicans have been using to paint a more benign face on their parliamentary tactic � the constitutional option � is the better one. Properly understood, it’s also the scarier one. Whether or not Republicans realize this, if they go through with their plan, they will have complete control over every aspect of Senate life, and will leave Democrats absolutely defenseless. There is a cost to Republicans, of course. But it’s merely their principles: Republicans will use the Constitution, which they so often say they revere as the ultimate limit on unchecked government, as a means to pursue arbitrary and absolute power. ANYTHING GOES Republicans say that the Constitution is the foundation of their strategy � though exactly which part of the Constitution is something of an open question. Sen. Orrin Hatch (R-Utah) told The New Yorker that the Constitution’s silence is key. “The Founding Fathers knew how to create a supermajority when they wanted to,” he said, and the advice and consent clause of the Constitution doesn’t require one. That means, he said, that Democrats have no right to filibuster judicial nominees or to demand 60 votes to end such a filibuster and proceed to a vote on the merits. Frist (R-Tenn.) uses another line of reasoning. He has posted on his Web site a memo that declares at the top: “The constitutional option is grounded in Article I, Section 5 of the Constitution that empowers the Senate to ‘determine the Rules of its Proceedings.’ “ Together, the two theories add up to almost limitless power for the Senate majority: It can do anything it wants to, except in the very few instances when the Constitution says it can’t. Note that word: anything. This means that all the Republican claims of limits on their big-footing are disingenuous. The New York Times recently wrote that (presumably Republican Senate) aides “said that the new precedent would apply both to appeals court nominees and to future Supreme Court nominees, though not to candidates for the federal district courts.” And Hatch said in a speech earlier this month that “I cannot fathom how returning to our tradition regarding judicial nominations will somehow threaten our tradition regarding legislation.” He also claimed in a March speech that there is a constitutional distinction “between our role of advice and consent on judicial appointments and our authority over legislation.” Really? Where? By Hatch’s own reasoning, the Founders knew how to distinguish between the Senate voting on nominees and the Senate voting on legislation. They didn’t do so. And they certainly didn’t say that Democrats could filibuster nominees to some courts but not others. (For that matter, the Constitution doesn’t even draw a distinction between federal trial courts and federal appellate courts � it just foresees the possibility of “inferior Courts.”) Taking the Republicans’ logic seriously means accepting that, as Frist’s memo emphasizes, the Senate’s majority can “determine the Rules,” across the board, with the Constitution’s full blessing. In other words, past majorities have decided to submit to Senate rules, to precedent, and to courtesy. That was their right. And it’s no less the right of the current majority to simply say that it prefers none of that, thank you very much. LEGAL CAMOUFLAGE This whole topic has been given a veneer of legalistic finery that obscures the raw constitutional power at work. For instance, according to a fall 2004 law review article that has acted as something of a plan of attack for Republicans � “The Constitutional Option to Change Senate Rules and Procedures,” by Martin Gold and Dimple Gupta ( Harvard Journal of Law and Public Policy) � the nuclear option will “establish a precedent limiting the length of time for debate that would bind all future Senates.” And according to an analysis from the Congressional Research Service, “Employment of the [nuclear option] would require the chair to overturn previous precedent.” But talk of precedents, of points of order, and of Thomas Jefferson’s Manual of Parliamentary Practice only serves to camouflage that this isn’t about legal right. It’s about might. Democrats, at their peril, also think that this is a legalistic debate. Former Senate Minority Leader Tom Daschle laid out to The New Yorker the sorts of obstacles that Democrats could throw up in retaliation. He said, “It takes unanimous consent to stop the reading of bills, the reading of every amendment. . . . But any individual senator can insist that every bill be read, every vote be taken, and bring the whole place to a stop.” Along the same lines, Reid (D-Nev.), Daschle’s successor, recently wrote to Frist that “Should the majority choose to break the rules . . . , the majority should not expect to receive cooperation from the minority in the conduct of Senate business.” By Senate standards, that’s tough talk. Unfortunately, it’s also toothless. GAME OVER? Let’s say that Democrats � blue with fury � do their damnedest and try to close the place down (even if they don’t block national security bills). They make senators scurry through the tunnels to meet endless quorum calls. They refuse to consent to let committees meet as they should � even for a Supreme Court nomination hearing if the chief justice steps down soon. They make the clerk read out loud every bill and every amendment. In the meantime, Sen. Lisa Murkowski (R-Alaska) waits and waits for the Senate to finally clear the way for drilling in the Arctic National Wildlife Refuge. Sen. Ted Stevens (R-Alaska) grinds his teeth as his telecommunications bill stalls. And President George W. Bush tires himself out riding his bicycle as the Senate does not debate his Social Security reform bill. Then what? What happens is that Frist can say, “Enough.” He can invoke those six little words in the Constitution that let the Senate “determine the Rules of its Proceedings.” And then he can call for one vote after another � needing to be sustained by only 51 of his 55 Republican senators � to cut through each and every one of the Democratic obstacles. Democrats will object that he can’t. After all, doesn’t the Senate run on unanimous consent, meaning that a single objection from a single senator can stymie the majority? Well, no. The Constitution doesn’t say anything about unanimous consent, or points of order, or quorum calls � much less require them to run the Senate. That’s the true power of the constitutional option. Frist can use his majority to do whatever he wants. And I suspect that the courts, still smarting over Bush v. Gore, will easily find a way to stay out of this partisan bloodbath (or, to use their term, this “political question”). TIME TO PAUSE But before the Republicans decide to strip the Democratic minority of every conceivable defense, they might want to pause. Not over the payback they will receive when they lose their majority � that probably will be years in the future. And if the Republicans are ruthless enough, they can confirm enough judges and rewrite enough laws to bow out gladly when the time comes. Rather, what might make Republicans change their minds is that they will be doing exactly what they claim those liberal, lawless judges do. That is, they will be exercising raw, unreviewable power that’s not limited by, well, anything. After all, the Declaration of Independence, written by our vaunted Founders, took King George III to task for having “made Judges dependent on his Will alone” and “establishing . . . an Arbitrary government.” If Republicans these days agree on anything, it should be their opposition to this sort of institutionalized imperialism. After all, they (still) fault the post-Civil War reconstruction of the South for riding roughshod over the landscape. They assail the New Deal � and the massive government agencies it spawned � for ignoring traditional checks and balances and separation of powers. And they despise liberal “judicial activists,” which one Republican senator after another has denounced, precisely because they see these judges as ignoring the rules in order to impose their own unchecked will. Whether or not they realize it, Frist and his friends are doing the same thing. Because a Senate majority does not always equal a real majority, not when Senate Democrats represent more Americans than do Senate Republicans. Meaning that in protecting Senate minorities, the Senate rules can also be protecting democracy’s majorities. If that’s not enough, maybe a few words from conservative icon Justice Antonin Scalia will grab Republicans’ attention. He wrote in his book A Matter of Interpretation that “[i]t certainly cannot be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change.” Are Republicans willing to invoke our Constitution not just to change the rules, but to kill them all? Democrats have to hope that the answer is no. Unfortunately, that’s all they can do. Evan P. Schultz is a former Democratic counsel to the Senate Judiciary Committee and a former editor at Legal Times. The views expressed here are his own.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.