Nomination Watch

A preview of what will happen if Sen. Frist “goes nuclear” to ram through the Alito nomination

On Fox News Sunday, Senate Majority Leader Bill Frist said that, in the event of a Senate filibuster of the Alito nomination, he would trigger the “nuclear option” to change the Senate’s rules so that no filibusters would be allowed.  (He also said that all Supreme Court nominees deserve an “up or down vote” in the Senate – forgetting, apparently, that Harriet Miers’ nomination was withdrawn by the White House after a hue and cry by the far right but before she even had a confirmation hearing, let alone a vote.)

You’ll recall that the “nuclear option” is the term that Senator Lott coined for a maneuver on the Senate floor under which the Senate majority would bypass normal Senate rules to declare filibusters of judicial nominations impermissible.

Sen. Frist’s comments provoked a swift and ferocious denunciation by Senator Robert Byrd, a leading authority on Senate history.  Senator Byrd pointed out, correctly, that there is nothing unconstitutional about Senate filibusters, that the Senate rules permit them, and that it would be unacceptable for the majority to use its raw power to bypass those rules in order to disallow a filibuster over Alito.  He also pointedly noted that Senator Frist himself voted for a filibuster of a Clinton Administration judicial nominee, and that many of that Administration’s judicial nominees were bottled up in committee and never got their up or down votes.

Senator Byrd concluded:  “If the Senator [Senator Frist] wants a fight, let him try it.  I am 88 years old, but I can still fight, and fight I will for freedom of speech. . . .  I haven’t been here 47 years to see that freedom of speech whittled away and undermined." Senator Kennedy then joined the debate and echoed Sen. Byrd’s remarks, concluding, “The Senator from West Virginia [Sen. Byrd] is not going to be intimidated, nor myself.”

So if it comes to a filibuster over this nomination, and Senator Frist does go nuclear, he can’t say he wasn’t warned about having quite a fight on his hands!

supreme court samuel alito

Frist scheming to break bipartisan deal?

Robert Novak reported in a Saturday column: 

Kavanaugh and Boyle are not included in the bipartisan compromise on confirmation.  If Democrats refuse to end debate on them, Senate Majority Leader Bill Frist is expected to invoke the "nuclear option" to confirm them by majority vote.

This would be a blatant attempt to break the deal, reached just weeks ago, in which a bipartisan group of 14 Senators (notably, not including Frist) promised:

. . . to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

In plain English, that meant taking the nuclear option off the table.  And the deal did not condition this “no nukes” pledge on any promise to refrain from filibustering Boyle or Kavanaugh, a la the promises on Owen, Brown and Pryor.

Is this just one conservative columnist’s attempt to pressure Frist to try to break the deal—or does Frist really think he can muscle the seven Republican dealmakers into going back on their word?  Worse, does he know that some of them never meant to keep their word in the first place? 

judicial nominations nuclear option

Our plunge into the “extraordinary circumstances” fray

In the two weeks since the Senate “Gang of 14” agreed to a deal that avoided the nuclear option (that's a .pdf file), a lot of ink has been spilled about the part that says that future judicial nominees should be filibustered only in “extraordinary circumstances.”  Some conservatives have argued that this means Senators can’t block nominees on the basis of their judicial philosophy, or that the fact that the deal allows floor votes on three nominees (Priscilla Owen, Janice Rogers Brown, and William Pryor) means they and other nominees with similar records are by definition not “extraordinary circumstances.”   

These arguments miss the boat.  After all, the deal itself explicitly says that “extraordinary circumstances” are in the eye of the beholder: 

Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

However, we are not inclined to avoid a good debate, so here are our observations about the meaning of “extraordinary circumstances”:

First, a nominee’s judicial philosophy is clearly relevant.  When President Bush says he is looking for nominees like Clarence Thomas and Antonin Scalia, he is not talking about their fashion sense or their winning smiles—he is talking about their judicial philosophies.  Since Presidents choose nominees on this basis, the Senate must evaluate them on this basis too.  As NominationWatch Executive Editor Marcia Greenberger explained in this Congressional testimony (.pdf), both sides of the nomination debate have long agreed on this.  Additionally, the deal allows filibusters on two pending nominees—William Myers and Henry Saad—to continue, suggesting that these nominees do constitute “extraordinary circumstances.”  The opposition to Myers, for example, is certainly based on his extreme judicial philosophy. 

Second, filibusters on Owen, Pryor, and Brown were ended as a trade-off for taking the nuclear option off the table—not because their nominations were not “extraordinary.”  Ending the filibusters on these three extreme nominees as part of the deal does not set any precedent for the meaning of “extraordinary circumstances.” 

And third, there has not been a Supreme Court vacancy in 11 years, and the Court is closely divided on extremely important issues that affect the daily lives of many Americans (.pdf).  It does not take a dictionary or an expert to tell you that any out-of-the-mainstream Supreme Court nominee who would roll back well-established rights and legal principles would be an “extraordinary circumstance.”

judicial nominations extraordinary circumstances

President Bush to “Gang of 14”: You talkin’ to me?

On Friday the Washington Post reported that President Bush may soon appoint dozens of new judicial nominees.  The article strongly suggests that the President is not going to consult with Senate Democrats about his choices:

The Bush team indicated that it plans no changes in its selection process in the wake of the Senate deal. Senate Democrats said they have not been consulted on any new nominations.

This stubborn refusal to consult with the other party in order to identify reasonable, consensus nominees benefits no-one—not the President, not the relationship between the three branches of government, and least of all not the American people. 

The deal: what does it all mean?

Our analysis: the deal that averted the nuclear option (warning--that's a .pdf file) is part good, part bad—that’s why they call it a compromise.  On the positive side, the dealmakers agreed that during this session of Congress (which goes through 2006) they will not support Senate Majority Leader Bill Frist in any attempts to “go nuclear,” or change the Senate’s rules on confirming judges.  The deal also preserves the possibility of filibusters on nominations in the future by saying that Senators can filibuster nominees only under “extraordinary circumstances,” with each Senator using “his or her own discretion and judgment” in determining what that means. 

The deal-makers also seem to have consulted their pocket copies of the Constitution and come away with some useful advice for the President.  The Constitution says that the President must get the Senate’s “Advice and Consent” in nominating judicial nominees, and the deal says that the Framers really meant it.  It encourages the President to consult with Senators of both parties before naming future nominees. 

On the negative side, the deal-makers agreed to end debate and move to a floor vote on three of the Administration’s most controversial nominees:  Janice Rogers Brown, William Pryor, and Priscilla Owen. 

All in all, the deal seems to be an object lesson in the meaning of “compromise.”  Given that, it’s interesting to see that many on the far right have decried the deal as a total loss—in the words of James Dobson of Focus on the Family, a “complete bailout and betrayal.” They had their hearts set on getting rid of the filibuster in time to push through the most extreme of the extreme for the Supreme Court.  Foiled—so long as we keep fighting!

BREAKING NEWS: A deal to avert the nuclear option has been reached!

The Washington Post just reported that tonight seven Republicans and seven Democrats announced a deal that will avert the “nuclear option,” at least for now, in exchange for an agreement to allow floor votes on three of the Administration’s most controversial nominees: 

Fourteen Republican and Democratic senators broke with their party leaders last night to avert a showdown vote over judicial nominees, agreeing to votes on some of President Bush's nominees while preserving the right to filibuster others in "extraordinary circumstances."

The dramatic announcement caught Senate leaders by surprise and came on the eve of a scheduled vote to ban filibusters of judicial nominees, the "nuclear option" that has dominated Senate discussions for weeks. The deal clears the way for prompt confirmation of three appellate court nominees -- Priscilla R. Owen, Janice Rogers Brown and William H. Pryor Jr.

Democratic leader Harry M. Reid (Nev.) called the pact "a significant victory for our country." But Majority Leader Bill Frist (R-Tenn.) said "it has some good news, and it has some disappointing news."

In a reaction to the deal, NWLC Co-President and NominationWatch.org Executive Editor Marcia Greenberger said:

Defusing the nuclear option and preserving the right to filibuster some judicial nominations was essential for maintaining our nation’s system of checks and balances, and hopefully it will pave the way for bipartisan consultation on judicial nominees. But we are very disappointed that three of President Bush’s most extreme judicial nominees will no longer be filibustered as a result of this compromise.

Click here to see Marcia’s full statement.

NWLC Leaders Speak Out on TomPaine.com

Check out Tearing up the Rule Book, by NWLC Co-President Marcia Greenberger and Vice President Judith Appelbaum on today's TomPaine.com:

Imagine a baseball game in which the manager of the team at bat turns to the umpire, a close associate, and asks for a rule change in the bottom of the last inning to guarantee a win for his side—say, a reduction in the number of balls it takes to get a walk, from four to two. Ignoring the league’s established procedures for modifying the rules of the game, the umpire announces the new rule, the pitcher and his team lack the power to overturn it, batter after batter draws a walk, and the game is no longer a contest at all.

Any baseball team that behaved like this would be immediately disqualified for ignoring the rules that make the game fair.

Now, imagine if members of the U.S. Senate changed the rules when they didn’t like them. Soon you may not have to imagine because as early as this week, the U.S. Senate may be tearing up its own rule book by launching the “nuclear option” to clear the way for the president’s most controversial judicial nominees.