Bill Frist's "nuclear option"

Published December 13, 2004 11:53PM (EST)

Though William Rehnquist is slated to swear in President Bush in January, you can probably bet the farm at this point that the ailing 79-year-old chief justice won't stay on the bench much longer. Many expect his departure to usher in an incendiary period of battle over judicial nominations, particularly as emboldened right-wing activists put increasing pressure on President Bush to tap anti-abortion, anti-gay-marriage hard-liners for the job.

According to the Washington Post, the coming battle may have Capitol Hill on the brink of a meltdown -- with Sen. Majority Leader Bill Frist threatening to use the full arsenal at his disposal.

"As speculation mounts that Chief Justice William H. Rehnquist will step down from the Supreme Court soon because of thyroid cancer, Senate Republican leaders are preparing for a showdown to keep Democrats from blocking President Bush's judicial nominations, including a replacement for Rehnquist. Republicans say that Democrats have abused the filibuster by blocking 10 of the president's 229 judicial nominees in his first term -- although confirmation of Bush nominees exceeds in most cases the first-term experience of presidents dating to Ronald Reagan. Describing the filibusters as intolerable, Senate Majority Leader Bill Frist (R-Tenn.) has hinted he may resort to an unusual parliamentary maneuver, dubbed the 'nuclear option,' to thwart such filibusters.

"'One way or another, the filibuster of judicial nominees must end,' he said in a speech to the Federalist Society last month, labeling the use of filibusters against judicial nominees a 'formula for tyranny by the minority.'"

The "nuclear option" explained:

"At issue is a seldom-used, complicated and highly controversial parliamentary maneuver in which Republicans could seek a ruling from the chamber's presiding officer, presumably Vice President Cheney, that filibusters against judicial nominees are unconstitutional. Under this procedure, it would take only a simple majority or 51 votes to uphold the ruling -- far easier for the 55-member GOP majority to get than the 60 votes needed to break a filibuster or the 67 votes needed to change the rules under normal procedures. It would then take only 51 votes to confirm a nominee, ensuring approval of most if not all of Bush's choices."

The Dems are responding with some brinkmanship of their own:

"If they, for whatever reason, decide to do this, it's not only wrong, they will rue the day they did it, because we will do whatever we can do to strike back. I know procedures around here. And I know that there will still be Senate business conducted. But I will, for lack of a better word, screw things up." -- Sen. Minority Leader Harry Reid, D-Nev.

Use of the nuclear option "would make the Senate look like a banana republic ... and cause us to try to shut it down in every way. Social Security and tax reform need Democratic support. If they use the nuclear option, in all likelihood they would not get Democratic support [for those and other initiatives]." -- Sen. Charles E. Schumer, D-NY.

All the same, the far right is embracing its own Colonel Jack Ripper and his legislative doctrine of preemption. Says radio host and blogger Hugh Hewitt, "Bill Frist's finger is on the button. Push it, Senator."

By Mark Follman

Mark Follman is Salon's deputy news editor. Read his other articles here.

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