Clock ticks for Senate

Moderates will give one last shot to averting the nuclear option.

Published May 23, 2005 12:55PM (EDT)

Twelve senators seeking to avert the nuclear option will meet again in Washington today in one last attempt to strike a deal. If they dont succeed, the Senate will vote Tuesday on the Republicans' motion to close debate on the nomination of Priscilla Owen -- putting the body on what would appear to be an unstoppable journey to nuclear land.

Assuming theres no deal beforehand, the 44 Democrats and one independent in the Senate will have the votes necessary to deny Republicans the 60-vote majority they need to cut off debate. The Republicans' cloture motion will fail. Bill Frist will then ask the presiding officer of the Senate -- probably Dick Cheney -- to rule that requiring a 60-vote majority on a cloture vote is unconstitutional in the case of judicial nominees. The presiding officer will grant that request, and the Democrats will lodge an appeal. At some point after the Democrats lodge their appeal, some Republican will file a motion to table, or postpone indefinitely, the Democrats' appeal. Because such a "tabling" motion is not debatable under Senate rules -- which is to say, its not subject to filibuster -- Republicans will be able to defeat the Democrats' appeal with a simply majority vote. If the Republicans can hold together 50 votes on the tabling motion, plus one from Cheney, the presiding officer's ruling will stand and filibusters of judicial nominees will have become impermissible -- all without a formal change in Senate rules.

Will it really happen? Who knows? When senators involved in negotiations last met in person on Thursday evening, they seemed cautiously optimistic -- but heavy on the cautious part -- that theyd be able to get a deal. One reason for their optimism: Nobody knows what will happen if the nuclear option comes up for a vote. An aide for a senior Democratic senator tells us that neither side is certain it has the votes to prevail on the nuclear option: Senate Majority Leader Bill Frist and Senate Minority Leader Harry Reid each has 47 or 48 votes locked in; neither can be sure that he'll get to the majority he needs to win.

By Tim Grieve

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

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