- The Washington Times - Thursday, May 8, 2003

Republicans could immediately break the current filibusters against two of President Bush’s judicial nominees with a rarely used parliamentary procedure that would confirm them through a simple majority vote, according to a plan under consideration by Senate Republicans.The tactic would be so drastic in the usually congenial Senate that Republicans refer to it as their “nuclear option.”Sen. Arlen Specter, Pennsylvania Republican, alluded to the maneuver in a Judiciary Committee hearing yesterday, but added ominously, “I’m not going to discuss that.”Republicans have grown increasingly frustrated over the filibuster Democrats lodged against Washington lawyer Miguel A. Estrada two months ago. Mr. Bush nominated Mr. Estrada to the U.S. Court of Appeals for the District of Columbia two years ago this month.Though Mr. Estrada has support from a majority of senators — including four Democrats — a stallwart group of 45 Democrats has voted five times to prevent Mr. Estrada’s nomination from reaching the Senate floor for a final vote.Then last week, Democrats lodged a second filibuster. Texas Supreme Court Justice Priscilla Owen, nominated to the 5th Circuit U.S. Court of Appeals, has support from 52 senators, a majority, but short of the 60 needed to force a final vote.”The filibuster properly used can be valuable in ensuring that we have a full and adequate debate,” said Sen. John Cornyn, Texas Republican, who chaired a hearing yesterday aimed at ending the judicial gridlock and smoothing confirmations of future nominees.But, he added, “majorities must be permitted to govern.”The “nuclear option” being discussed among Republicans only has been tried twice in the history of the Senate, according to former Parliamentarian Bob Dove. Most recently, it was used in 1975 to make it easier to break filibusters. For more than two decades, civil rights legislation had been routinely stalled in the Senate because it was nearly impossible to break filibustering minorities.Vice President Nelson A. Rockefeller came over to the Senate to preside as president of the body and recognized a resolution to change the Senate’s “standing rules” to make it easier to break the filibuster.Immediately, a “point of order” — or parliamentary objection — was made. Mr. Rockefeller tabled the objection and the resolution was put to a simple up-or-down vote and passed by a simple majority.”It was an ugly, ugly scene,” said Mr. Dove, who was the Senate’s assistant parliamentarian at the time.Democrats warn that tinkering with such vital elements of the institution is dangerous.”The rules [of the Senate] do not always produce the result which a majority of the Senate at a particular time would like,” said Sen. Edward M. Kennedy, Massachusetts Democrat, at Mr. Cornyn’s hearing. “But over the long run, they have produced the kind of Senate which the Framers of the Constitution intended.”Partisan disagreement over judicial nominations is so intense that senators couldn’t even agree on the title of Mr. Cornyn’s hearing: “Judicial Nominations, Filibusters and the Constitution: When a majority is denied its right to consent.”“The title suggests that [the hearing] may be intended to turn up the heat rather than cool things down,” said Sen. Russell D. Feingold, Wisconsin Democrat, who warned that any effort to change Senate rules “will be met with stiff resistance.”As with the country’s actual nuclear arsenal, there is a form of mutually assured destruction here, too.The only thing holding Republicans back from breaking the filibuster this way is knowing that the same weapon will be used against them someday in the future when the roles are reversed. “The old bears in the Senate want to preserve their ability to filibuster the Democrats in the future,” said one key Senate aide, who also stressed that such a maneuver would only be used to break filibusters involving executive nominees.”If the Democrats take back the Senate — God forbid — the first 10 things they bring up will be anathema to us but they’ll say [forget] you, we have our 51 votes.”



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