Judicial Nomination -- Republicans Seriously Consider the Nuclear Option!!

Senate Republican leaders are considering rewriting the chamber’s rules to limit what they call Democratic obstructionism that has slowed the pace of work in the Senate to a trickle.

In particular, Republicans want to eliminate the ability of Democrats to filibuster consideration of the president’s executive and judicial-branch nominees, as well as bar filibusters that block the naming of conferees prior to House and Senate negotiations.

To do so, Senate GOP leaders are considering resorting to what they call the “constitutional option” and what Democrats deride as the “nuclear option” because they charge it would amount to a Republican declaration of all-out war against them.

Republicans say they must take drastic action because Senate Minority Leader Tom Daschle (D-S.D.) has put a freeze on all judicial branch nominees and has vowed to allow conferences to go forward only on a case-by-case basis.

Compounding their frustrations, Republican lawmakers have said that negotiations between the Senate Democratic leadership and the White House on advancing non-controversial judicial nominees have broken down. Daschle aides counter that the negotiations are still progressing.

A group of Senate Republicans held a meeting in the majority leader’s office Monday evening to discuss, among other things, how to break through Democratic obstructions and discussed using the constitutional option to strip Democrats of the power to block judicial nominees or conference negotiations.

Emerging from the meeting, Senate Majority Leader Bill Frist (R-Tenn.) said the constitutional option could be used to prevent Democrats from filibustering judicial and executive branch nominees or the naming of Senate conferees.

“The Senate hasn’t been reformed for 25 years, maybe it’s time to reform the Senate,” said Frist.

In an interview yesterday, Frist said he and his colleagues have frequently discussed using the constitutional option in response to Democratic opposition that has recently prevented votes on key legislation.

This year Democrats have blocked a conference on the CARE Act, a bill that would provide tax incentives for donations to charitable organizations, and have objected to the naming of conferees for the transportation reauthorization bill.

“There’s been constant discussion with colleagues because of the level of obstruction,” said Frist. Frist added that Republican lawmakers have discussed amongst themselves the prospect of using the constitutional option for the past year and a half.

A GOP lawmaker familiar with intra-caucus discussions about changing the Senate rules said that Republicans have discussed for a while the prospect of using the constitutional option to quash filibusters of presidential nominees, but recently expanded the prospective scope of the solution only recently after Democrats began blocking conference meetings.

Sen. Orrin Hatch (R-Utah), the chairman of the Senate Judiciary Committee, said he recently asked prominent conservative activists to build support amongst conservative activists for the constitutional option.

Sen. Harry Reid (D-Nev.), the Senate Democratic Whip said: “Maybe they don’t want rules around here, maybe they want [the Senate] to run like the House of Representatives.”

Todd Webster, Daschle’s spokesman, said: “For the majority to change the rules instead of playing fairly by them would be a colossal admission of obstinacy. What’s their next power grab… replacing the president with a king?”

Using the constitutional option to change Senate rules is highly unusual. The most customary method for changing rules is for the Senate Rules Committee to propose a new rule and for the Senate to then vote to approve it.

However, the drawback of the latter tactic in the view of Republicans is that it may be filibustered. Sixty-seven votes would be required to cut off debate on a new proposed rule, and Republicans recognize they would have no chance of marshaling enough Democratic support.

The constitutional option would require only a simple majority of senators to change the rules, but it would necessitate delving into the arcana of the Senate rules and employing an obscure parliamentary tactic.

There are several different versions of the constitutional option. The most likely scenario would be for a Republican senator to raise a point of order that the process of naming conferees may not be filibustered. Then the chair — most likely to be Vice President Dick Cheney during such a momentous point in Senate history — would sustain the point of order.

Democrats trying to protect the power of the minority would likely then object to the ruling of the chair, but Republicans could counter by offering a non-debatable motion to table the objection, which would only require a simple majority or 51 votes to pass.

If the motion to table garnered 51 votes, the rules of the Senate would be effectively changed. The same tactic could be used to declare that the confirmation of presidential nominees could not be filibustered.

Alternately, Republicans could raise a point of order that the naming of conferees or the confirmation of a judicial nominee may not be filibustered. The Republican chair would overrule the point of order and then Republicans would ask for a vote appealing the ruling of the chair. If this tactic occurred in a non-debatable posture, such as at the end of a time agreement, Democrats could not filibuster the vote appealing the ruling of the chair. A simple majority of senators then could vote to effectively change the Senate rules for filibusters.

A Senate Democratic parliamentary expert explained that these votes on point-of-order rulings would carry enough weight to set procedural precedents.

A third option would be for Republicans to raise constitutional point of order, whereby a lawmaker would assert that the filibuster of judicial nominees or conferees is unconstitutional. The Senate would then vote on whether such filibusters are constitutional, and if the point of order was raised in a non-debatable posture, such as at the end of a time agreement, Democrats could not filibuster the vote on it. A Senate Democratic parliamentary expert explained that a vote on a constitutional point of order would not likely carry enough procedural weight to set a precedent for the chamber.

While certainly controversial, using such tactics to change Senate rules is not unprecedented.

In 1977, then Majority Leader Robert Byrd (D-W. Va.) used a similar tactic to quash a so-called postcloture filibuster of a controversial natural gas deregulation bill.

Postcloture filibusters entailed the extensive use of roll calls, quorum calls, and other delaying tactics after the Senate had already voted to invoke cloture, or cut off debate, on a bill.

With then Vice President Walter Mondale presiding over the chamber, Byrd made the point of order “that when the Senate is operating under cloture, the Chair is required to rule out of order all amendments which are dilatory or which on their face are out of order,” according to Congressional Procedures and the Policy Process, by Walter Oleszek.

Mondale sustained the point of order, even though it contradicted previous Senate precedents, according to Oleszek, and the appeal of Mondale’s ruling lost by a vote of 79 to 14.

Well, this, if remotely true, explains THIS article.

Democratic Senate candidates counterattack obstruction label
The Hill ^ | 12 May 2004 | Klaus Marre

Posted on 05/12/2004 10:38:40 AM EDT by MegaSilver

Senate Democrats this week are launching a more aggressive effort to rebuke Republican charges that they are obstructionists.

Democratic Policy Committee Chairman Sen. Byron Dorgan (D-N.D.) kicked off the effort with a floor speech Monday, telling Republicans that they control both chambers of Congress and the White House and only have themselves to blame for not being able to pass bills.

Republicans counter that the Senate rules allow a minority of lawmakers in a closely divided chamber to bring proceedings to a halt.

One Democratic aide said that the new effort of countering the obstruction charge “will be folded into everything we say from now on” and that Democrats will be heard every time Republicans charge them with obstruction.

The GOP has been trying to stick the “obstructionist” label on Senate Democrats and their leader Sen. Tom Daschle (S.D.), saying they are responsible for blocking judges and legislation that would boost the economy and employment.

But Democrats maintain it is Republicans who fail to advance the Senate’s agenda by pulling their own bills as soon as Democrats successfully amend them.

“Every time we offer an amendment they don’t like, they have a seizure and pull the bill,” Dorgan said yesterday, adding he was tired of hearing the obstruction charge.

Democrats point to a corporate tax bill and legislation that would create liability protection for gun manufacturers as examples of how Republicans abandoned their own legislation because of key changes decided by the Senate majority.

In his floor speech, Dorgan cited news accounts that House and Senate Republicans want to coordinate an “anti-Daschle” message. The Democratic leader is in the midst of a re-election campaign that is seen as one of the more difficult ones for a Democratic incumbent. His opponent, former Rep. John Thune (R-S.D), is expected to make obstructionism a big issue in the election.

Although Dorgan said that Daschle “doesn’t need a defender on the floor of the Senate,” he blasted Republicans for blaming the Democratic leader for their failure to pass legislation.

Sen. Jon Corzine (D-N.J.) echoed these sentiments, saying Republicans are “trying to distract away from their own failures” on the economy by blaming Democrats for holding up measures that would help create jobs.

Corzine believes the obstruction charge does not resonate with Americans. He said he has “yet to have the first constituent ask me about obstructionism.”

He added that Democrats should have held up more bills in the past to prevent the administration from racking up record deficits.

Corzine does not think that the obstructionism charge will be a problem in Daschle’s reelection campaign, saying that “the more Republicans run on obstructionism the better it is for Democrats because the American people want to see results.”

“This is a bogus issue,” he added.

But some centrist Democrats are cautious to join the blame game. Sen. Max Baucus (D-Mont.) said he did not want to point fingers, adding that “it takes time to get things done in the Senate.”

Sen. Ben Nelson (D-Neb.) said Republicans leveled the same allegations in 2002 and this year and will do so again in 2006. Nelson warned Democrats not to engage in a “partisan reaction.” He added that it is important for Democrats to “show that we want to move forward” and take precautions against Republicans changing Senate policy in conference by pre-conferencing legislation.

Sen. John Breaux (D-La.) said “obstruction is not a one-way street” and “must be put in the right context.” Breaux added that he thought Dorgan’s comments were “right on target.”

Dorgan said the charge of Democratic obstructionism is a “hollow claim.” He argued that Republicans have stopped major pieces of legislation because they were unable to agree among themselves on a level of funding in the case of the highway bill or on certain provisions in the energy bill.

But a GOP aide said the highway bill is a good example that Democrats are holding up the process because of their insistence to pre-conference legislation.

Dorgan also accused Republicans of standing in the way of “good public policy,” such as reimportation of prescription drugs, country-of-origin labeling, increasing the minimum wage and extending unemployment benefits. Dorgan said these issues are not moving forward “because we have people who think they are just a set of human brake pads, that their sole mission in life is to stop good things from happening.”

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