Will the 'Nuclear Option' Remake the Senate?

Sheilah Kast talks with Steven Smith, professor of social sciences at Washington University, about how the Senate could change if Republicans vote this week to prohibit judicial filibusters.

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SHEILAH KAST, host:

Unless moderates can strike a last-minute deal, the Senate probably will vote this week whether to prohibit filibusters of judicial nominees. What would happen if Senate Republicans prevailed in this dispute? For insights, we talk to Steven Smith, a professor of social sciences and director of the Weidenbaum Center on the Economy, Government, and Public Policy at Washington University in St. Louis. He said not everyone is convinced that all of President Bush's judicial nominees would be approved if they needed just 51 votes instead of the 60 votes required to end a filibuster.

Professor STEVEN SMITH (Weidenbaum Center on the Economy, Government, and Public Policy, Washington University): Many Democrats argue that the president would still overreach, that he might still have some difficulty in mustering a majority. There might be one or two of the current nominees who would fail to get the votes of all Republicans, though I'm guessing that they would gain a majority of the Senate.

KAST: Could this rule change banning filibusters eventually be applied to other types of nominees, say, Cabinet-level posts?

Prof. SMITH: My guess is that it's almost inevitable. The same provision in the Constitution that requires Senate advice and consent for judicial nominations applies to executive nominations. So I think it's only a matter of time.

KAST: And might it be extended to legislation?

Prof. SMITH: The Republicans argue, at least what they've said publicly so far, that it really is limited to judicial nominations. The Democrats argue, however, that the real precedent here is that they are changing the Senate practice by a ruling backed up by a Senate majority rather than through the normal procedure. If that's the real precedent, then maybe future Senate majorities will take advantage of this to force through additional changes in the rules, just to suit its current purposes. That's the real fear here for those who worry about the Senate as an institution.

KAST: Is there a simple way for people not steeped in Senate rules to understand the difference between changing the rules and setting a new precedent?

Prof. SMITH: Well, the Senate actually has a rule that says that when an extended debate occurs on a resolution to change its rules, it requires a two-thirds majority to close the debate. The Senate has that rule really to protect its rules, to make it difficult to change the rules. Now what the Republicans worry about is that with such a high threshold, to get a vote on a change in the rules, they'd never get a change. So they're looking for another way around. What they'd like to do is have the vice president rule that the Constitution supercedes those rules, at least in this respect, and then that would be backed up by a vote of the simple majority of the Senate, and so you get a new precedent. The Democrats thinks that's so radical that it requires radical action on their part and so we're applying the term `nuclear option' to all of this.

KAST: Democrats say they would respond to such changes by slowing down legislative work in the Senate. What types of things would be most imperiled?

Prof. SMITH: The Senate relies very, very heavily on unanimous consent: to adjourn, to recess till the next day, to take up another measure, to take a time out through a quorum call. The Democrats can plant one senator on the floor and simply object to these unanimous consent requests. That'll either make it impossible to do what the Republicans want to do or very, very cumbersome.

KAST: And so it's more a question of slowing down the Senate than actually blocking any specific legislation.

Prof. SMITH: Well, they can do it both ways. They've already said that they're not going to engage in a general obstructionist strategy. There are many pieces of legislation the Democrats wouldn't dare block or would actually like to see passed: appropriations bills that fund the federal government for the next year. They're not going to bring the government--to close down the government. There's an annual defense authorization bill. It provides authority to the Defense Department to carry on its activities. They're not going to filibuster that bill. They're going to be far, far more selective. But they may be more aggressive and they may select more measures to obstruct than they did in the past.

KAST: Critics of the change have been warning Republicans that the tables may be turned in 2008 or 2012. What would happen if Democrats recaptured the White House?

Prof. SMITH: Well, if they recaptured the White House and the Senate, we would expect that president to forward judicial nominations to the Senate to his or her liking and that that president would have less difficulty in getting Senate confirmation for those nominees than would have been the case if they would have left the filibuster rule untouched. So what we can expect to see here is that as the party control of the Senate and the White House changes from time to time, we're going to see a more radical change in the nature of judicial nominees--one side trying to make up for what it lost during the last period.

KAST: How, if at all, would ending judicial filibusters change the culture of the Senate?

Prof. SMITH: Well, if you change the foundation, the procedural foundation of the Senate, which rests on the filibuster and super-majority cloture, you change the reliance on unanimous consent. You change an awful lot that goes on in the Senate. Senators don't like that. It's very interesting that Senator Frist here has emphasized that this precedent applies only to, narrowly to judicial nominations and the reason for that is that many of his Republican colleagues would not go along with the broader change. The reason for that is that it would change the nature of their institution. They like the clout that the individual senator gets by virtue of being able to go to the floor and object to a unanimous consent request or grab the floor and talk at length on any issue they want. It's the empowerment of the individual senator that is at stake here.

KAST: Steven Smith is a professor of social sciences at Washington University in St. Louis. He joined us from member station KNOW in St. Paul.

Thanks.

Prof. SMITH: My pleasure.

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