It begins. Barring an 11th-hour compromise, the Senate launches a
debate Wednesday on whether to limit the right of senators to speak
on judicial nominations - a key decision point in its 216-year
In an unvetted moment, GOP Sen. Trent Lott of Mississippi dubbed
the proposed change in Senate rules "the nuclear option." Later, GOP
leaders tried, without success, to redub the change "the
constitutional option." It never stuck.
One reason: Total war fits the tone of this conflict. In the run-
up to Wednesday's debate, groups on both sides of the issue, from
conservative religious activists to hip-hoppers, waged rhetorical
war outside the Capitol, over the Internet, and in rallies and ad
campaigns in targeted states across the nation.
Meanwhile, inside the Capitol, lawmakers below the leadership
level pursued intense negotiations of their own to avert a showdown
over judges and a rule change that
could change Senate procedure and culture well into the future.
"We had majorities, both Democrat and Republican, try to muzzle a
minority before, but we've never had a minority willing to retaliate
to this extent," says Charlie Cook of the Cook Political Report.
In the closing hours toward Wednesday's showdown, the mantra of
both sides has been fairness. Republicans say that the president's
judicial nominees deserve a fair, up-or-down vote and that Democrats
are violating the Constitution and more than 200 years of Senate
precedent by denying it. Ten of President Bush's nominees were
blocked in the last Congress, seven of whom have been renominated in
What Democrats want
Democrats say they want fair treatment for the views of
minorities, also enshrined in more than 200 years of Senate
precedent. "I'm sorry about their feelings," said Sen. Robert Byrd
(D) of West Virginia in an exchange with Sen. Bill Frist (R) of
Tennessee on the floor of the Senate last week, referring to the
blocked Bush nominees. "But senators have a right to speak."
He added, "Killing freedom of speech in the Senate.... You don't
want that legacy."
If a compromise is not reached before Wednesday, the script for
the nuclear option plays out something like this: The majority
leader brings to the floor a contested nomination, most likely that
of Texas judge Priscilla Owen and/or California judge Janice Rogers
Brown. At some point, either before or during debate, he or a
designee will raise a point of order that a simple majority, rather
than the current 60-vote "supermajority," is needed to end a
filibuster on the nomination.
Then, it gets murky. The point of order, effectively a rule
change, will be decided by the chair, Vice President Dick Cheney,
who also serves as Senate president. Mr. Cheney has already signaled
he will support the rule change. (In an unusual leak, Senate
Democrats say that the parliamentarian will not.) When Democrats
appeal the ruling, the matter will be settled by majority vote, with
the vice president breaking a tie.
At press time, both sides claimed they had the votes to support
their side, but many senators were still not declaring a public
Republicans say this rule change will apply only to the
president's judicial nominations, but Democrats and some outside
experts say that an empowered majority may expand the change to
other areas. "Once you go down that road, there will inevitably be a
lot of pressure on the majority to expand the filibuster ban," says
Sarah Binder, senior fellow at the Brookings Institution. …