New Senate Meets Under 'Nuclear' Cloud

U.S. Senate photos

Senate Majority Leader Bill Frist (R-TN), left, and Minority Leader Harry Reid (D-NV).

When Chief Justice William Rehnquist swore President Bush in for a second term in office on the steps of the Capitol, it was a moment when all three branches of the federal government -- executive, judicial and legislative -- seemed to meld in the quadrennial inaugural crucible. It was a moving moment, given the visible toll Rehnquist's battle with thyroid cancer has taken on him.

But seeing the two men face to face also raised huge political question marks. If Rehnquist retires, who might be his successor? And what kind of battle lies ahead for a Senate charged with confirming whomever President Bush might choose?

In the last Congress, when they still had 49 members in their caucus, Senate Democrats blocked 10 of the president's appellate court nominees. But Democrats then lost four seats in November's elections. With their caucus down to 45, everything got tougher.

Senate Republicans were gleeful. They claimed that the stinging defeat of Senate Democratic leader Tom Daschle of South Dakota was a consequence of resisting the president's judicial nominees.

That was not so clear a case of cause-and-effect when I made two reporting trips to South Dakota in 2004. I found only one voter who cited the judicial nominations as a reason for voting against Daschle, and that one was Republican John Thune, who now holds Daschle's seat. Nonetheless, Republicans will use Daschle's defeat as they seek the 60 votes needed to cut off a filibuster -- at least when the issue at hand is a judicial nomination.

A week after the election, Senate Republican leader Bill Frist told a Washington meeting of the Federalist Society -- the nation's pre-eminent group of conservative lawyers -- that judicial filibusters were radical and dangerous and had to be overcome. "The Senate now faces a choice," Frist declared. "Either we accept this new and destructive practice or we act to restore constitutional balance."

And there's the rub. Democrats don't see the practice as new and they think it's well within their constitutional rights as the opposition party. They show no inclination to desist in their use of the filibuster to block judicial nominees whom they consider too conservative or unqualified, including the 10 blocked in the last Congress (almost all of whom President Bush has defiantly renominated).

The Democrats' new Senate leader, Harry Reid, told me the president will be lucky if Democrats continue to use such filibusters as infrequently as they did in the last Congress, when they confirmed 204 of his court nominees and blocked just the 10. Reid knows most of the seats his party lost in 2000 were held by Southern Democrats who didn't support the judicial filibusters anyway.

Moreover, Reid believes he can keep a coalition together to prevent Republicans from reaching that magical number of 60. "Sen. Frist wishes every day he had a caucus like mine that he could keep together," Reid boasted at a Senate news conference on Monday. "We are a family, a Senate family."

So for Frist's edict to prevail, he must strip the Senate minority of its right to "extended debate," as filibusters are politely known, when it comes to judicial nominees. He could accomplish this by resorting to what's known in the Senate as "the nuclear option" for its sweeping effect and long-lasting consequences.

Here's what the nuclear option would look like: A Republican would rise to challenge the constitutionality of a filibuster against a judicial nominee. The presiding officer, who in this case would likely be Vice President (and Senate President) Dick Cheney, would rule the objection in order. Once a Democratic senator contested the chair's ruling, the question would be resolved by a simple majority vote. The Senate would have changed its rules, in effect, without the two-thirds majority vote usually required to do so.

Simple, right? Still, Frist has not yet embraced a nuclear strategy. Despite his sabre rattling, he knows there could be deadly fallout for the rest of the legislative process. As Reid puts it, "they will rue the day." The Democratic leader is known for his intricate knowledge of the Senate's arcane rules, and he threatens to tie things up on the Senate floor if Republicans strip the minority of its best weapon.

Beyond that, Democrats and some Republicans warn that putting curbs on the use of the filibuster would set a precedent that could lead to its elimination altogether. That would render the more deliberative Senate much more like the House, where debate was limited in the mid-19th century and a simple majority is all that's required to pass legislation.

Frist also has to weigh his use of the nuclear option against his desire to push through a raft of controversial bills, including overhauls of Social Security and the tax code. Democrats angered by the use of that procedure could easily throw sand in the legislative gears and hold up everything from nominations to the agenda of the president -- especially a second-termer whose influence over Congress is likely to wane.

It's also not clear that Frist could muster the 51 votes required to pass the nuclear option. Some GOP Senate moderates have already come out against removing what's amounted to a curb against judicial nominees about whom they too may harbor doubts. Other senior Republican senators have expressed qualms about rules changes that could come back to haunt them should Democrats regain the majority some day.

In the end, the president and the Senate majority might be better served by finding appointees -- particularly for the Supreme Court -- who are politically acceptable to enough Democrats to escape the filibuster altogether. And Reid himself might be a pivot point for such a strategy.

Reid, who's a Mormon, has long been opposed to legalized abortion and makes no apologies for this stand that sets him apart from many in his party. He's already told NBC's Tim Russert that he could see backing Supreme Court Justice Antonin Scalia to replace Rehnquist as chief justice. Like Rehnquist, Scalia is considered firmly against Roe v. Wade. If Reid should display similar tolerance for a new, like-minded nominee to the Supreme Court, Senate Republicans might not have to take any further action to head off judicial filibusters.