COLUMN: Memo to Republicans: Don’t go ‘nuclear’

The “nuclear option” is on the table. So says Senate Majority Leader Bill Frist.

No, the Senate is not debating whether to use atomic bombs in the war on terror. The “nuclear option” that the Republicans are threatening is actually an obscure parliamentary procedure — the mother of all parliamentary procedures — that could strip the minority party of its ability to filibuster judicial nominees.

That the procedure is even being discussed is evidence that Senate partisanship has escalated to unprecedented levels. In President Bush’s first term, Senate Democrats filibustered 10 of Bush’s judicial nominees to the federal bench. Had their nominations been put to a vote, a majority of senators would have approved. Senate rules specify, however, that in order to move to a vote, three-fifths of Senators must agree to invoke the cloture rule, that is, to end debate. In each of these cases, a coalition of at least 41 Democrats prevented an up-or-down vote.

In response, the Republicans characteristically stomped the ground, put on their best pouty faces and whined “No fair!” Before Bush’s term, federal judicial nominees had never been filibustered.

The Democrats tried to pass off their obstruction as concern about the quality of the nominees (if by “quality,” you mean “conservativeness”), but in their more honest statements it was clear that this was payback for all the holds and other tools of the majority that Republicans used to block President Clinton’s nominees.

In the election last November, Republicans increased their holdings in the Senate to 55 seats — a significant majority, but not filibuster-proof. Eager to approve Bush’s judicial picks during this session, the Republicans have discovered a loophole in the Senate Standing Rules, which may allow a majority of senators to change the Standing Rules. The “nuclear option” is the obscure parliamentary procedure that could be used to lower the threshold from 60 to 51. Republicans are considering a rule change that would apply only to judicial confirmations.

Predictably, the Democrats have responded with threats of mutual assured destruction. Should Republicans implement such a rule, Senate Minority Leader Harry Reid promised that the Democrats will block all legislation — as if the Democrats are capable of being more obstructive than they currently are.

Democratic Sen. Robert Byrd lambasted the “nuclear option” in a speech on the Senate floor last week, in which he compared the Republicans’ tactics to those employed by Hitler. Sen. Ted Kennedy agreed, calling Byrd’s speech “excellent throughout, reasoned, compelling, legitimate and persuasive.”

Perhaps their remarks would have carried more credibility had they not been two of the chief architects of a change in Senate rules in 1975, which lowered the “sacrosanct” cloture threshold from 67 to 60 senators.

Historical hypocrisy notwithstanding, Republicans should move from threatening the “nuclear option” to implementing it with the utmost caution.

The filibuster is a bargaining tool of the minority, a delay tactic and a preserver of the status quo. It prevents radical policy changes from being implemented or at least moderates policies by forcing compromises.

The “nuclear option” erodes the influence of filibusters and alters the nature of debate in the Senate. The immediate beneficiaries would be those in control, but in the long run, the decreased influence of the filibuster would concentrate power in the hands of the majority.

To some extent, the nature of the filibuster has already been changed. Under current Senate procedures, filibusters do not involve unending debates a la “Mr. Smith Goes to Washington.” Now Senators can filibuster simply by informing the chair that 41 senators intend to vote against cloture. The issue is set aside and other business is debated. Such a system makes filibusters politically easy and physically costless.

If Republicans want to raise the costs of the Democrats’ obstructionism, they should consider a reversion to the old rules of debate, requiring the opposition to actually continue debating the bill until one side gives in.

Dismantle the nukes — it’s not worth the risks.