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Court nominees deserve an “up or down vote” in the Senate – forgetting, apparently, that Harriet Miers’ nomination was withdrawn by the White House after a hue and cry by the far right but before she even had a confirmation hearing, let alone a vote.)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!