The nuclear option: Game on!

Bill Frist fires the first shot as moderates scramble to avert "mutually assured destruction."

Published May 19, 2005 11:20PM (EDT)

Somewhere in the midst of Bill Frist's opening statement Wednesday on George W. Bush's nomination of Priscilla Owen to the U.S. Court of Appeals -- after Frist had blown off Harry Reid's suggestion for a senators-only meeting to discuss the nuclear option, after he'd argued at length that filibusters of judges were unprecedented and unconstitutional and never before even "contemplated" in more than 200 years of Senate history -- New York Sen. Chuck Schumer rose to ask whether the Senate majority leader might yield for a question.

Frist refused, saying he'd prefer to finish his statement first. So the Senate majority leader railed on, arguing that Republicans had treated Bill Clinton's nominees fairly and that the Senate must now "do its duty and vote" on every last one of Bush's nominees. When he finally finished, Schumer rose to ask his question again.

"Isn't it correct," Schumer asked Frist, "that on March 8, 2000, my friend from Tennessee voted to uphold the filibuster of a judge, Richard Paez?"

The correct answer is yes -- Frist was one of a handful of Republican senators to vote against cloture on Paez' nomination -- but that's not what Frist said Wednesday morning. Instead, he launched into a rambling response that began with a stammering stutter-step -- "Mr. President, the, in response, the Paez nomination, we'll come back and discuss it further..." -- and ended with the claim that the Democrats were trying to "assassinate" judicial nominees by filibuster. In between, Frist revealed the extraordinarily thin reed on which the Republicans have hung their trumped-up outrage over the way Democrats have treated Bush's judicial nominees -- and possibly the reason that Frist is having such a hard time holding on to the Republican votes he needs to go nuclear.

By putting Owen's nomination on the Senate floor Wednesday morning, Frist took his first concrete step toward forcing a confrontation over the nuclear option. Although centrists from both parties are still working furiously to strike a compromise deal that would avert what Republican Judiciary Committee chairman Arlen Specter calls "mutual assured destruction," Frist has made his intentions clear: Unless he's assured up-or-down votes on every Bush nominee, he'll move to kill the Democrats' right to filibuster -- with a tie-breaking vote by Dick Cheney if necessary -- early next week.

But Frist needs to hold on to 50 Republican votes to get there, and Schumer's question Wednesday underscores the difficulty he faces: Too many people -- and maybe even too many Republican senators -- understand that what the Democrats have done to Bush's nominees is at least no worse than what Republicans did to Bill Clinton's.

To justify changing the rules of the Senate -- and breaking those rules to change them -- Frist desperately needs to be able to argue that he's engaged not in an affirmative power grab but in a defensive reaction to the sins of the Senate Democrats. Ideally, he'd be able to claim that the Democrats' filibusters are unprecedented. But he can't do that, and everyone knows it: In 1968, the Republicans led a filibuster of Abe Fortas, Lyndon Johnson's pick to serve as chief justice of the United States.

So Frist has fallen back on a more careful formulation; he says that there's no precedent for denying a floor vote to a judicial nominee who enjoys the support of a majority of the Senate. Frist injected that "majority support" qualifier into his speech Wednesday so often and so abruptly that it sometimes seemed that someone was sending him electric shocks to remind him.

But then came Schumer's jolting question, and Frist had to narrow his claims about what's unprecedented all over again. The problem: Paez was ultimately confirmed, meaning that he necessarily had "majority support." It's the ultimate "gotcha." Not only have Republicans done that which they say is unprecedented, but Frist is one of the ones that did it.

Frist tried mightily Wednesday to distinguish his vote against cloture on Paez from the Democrats' votes against cloture on Bush's nominees, but his explanations never quite took. Paez ultimately got a vote, Frist insisted, but that vote just confirmed that he had "majority support." The Paez filibuster wasn't led by party leadership, Frist said. True enough, but what's worse -- having a nominee blocked by 44 members of the Senate voting in line with their leaders, or having a nominee blocked by 14 renegade senators, as the Paez nomination was, or having a nominee blocked by a secret "blue slip" hold from a single senator, as dozens of Clinton's nominees were?

Frist also seemed to argue that the Paez nomination was an isolated event, while Democrats, he said, have "obstructed not one nominee but two, three, four, five, six, seven, eight, nine, 10 in a routine way." But as Judd Legum notes at Think Progress, a filibuster of judicial nominees is either constitutional or it isn't. There's no way for Frist to argue the Constitution allows him to filibuster one judicial nominee but prohibits someone else from filibustering 10.

Frist was followed on the floor by Harry Reid and then by Specter, whose role as Judiciary Committee chairman puts him in charge of managing the debate over the Owen nomination on the Senate floor. But if Specter was supposed to be leading the charge for the Republicans, it seemed that Frist's performance -- and Specter's own reluctance to embrace the nuclear option -- had made him exactly the wrong man for the job.

Specter all but begged for a deal that would avert Frist's plan, and he admitted what Frist would not. Acknowledging that Republicans had used their own tricks to block "more than 70" Clinton nominees, Specter said the nuclear option controversy "did not arise because the Democrats thought [Bush's nominees] were unqualified, but because it's payback time for the Republicans' treatment of Bill Clinton's nominees." On paper, it sounds like an accusation. In person, it was all admission. "It's important to acknowledge," he said, "that both sides have been at fault."

Specter refused to say how he'll vote on the nuclear option, tracking the language of GOP Virginia Sen. John Warner, who told reporters the day before that there was power in remaining silent. Specter said that the Senate works best -- that moderation and consensus can be reached -- when neither party is sure of its vote count.

That certainly seemed to be the situation Wednesday afternoon. While Frist and Reid continued to rattle sabers and take shots at one another -- in an afternoon appearance on the Senate steps, Reid said the only person in a black robe Americans should fear is Darth Vader -- a half-dozen or so senators continued a flurry of meetings aimed at averting the nuclear option. South Carolina Sen. Lindsey Graham told reporters that the time for a compromise is upon the Senate; the first in a series of votes leading to the nuclear option -- and with it, the clarity that will give one side or another a whole lot more bargaining power -- could come this week.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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