Filibuster a Possibility in Alito Nomination

In Depth

Both political parties are expecting a contentious fight over the nomination of Samuel Alito the Supreme Court, and some Democrats have not ruled out a filibuster. The Senate Majority Leader Bill Frist and Robert Byrd, the most senior member of the Senate, make the arguments for and against such a move.

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ROBERT SIEGEL, host:

Here's the timetable for the vote on the Alito nomination. First, a vote in the Judiciary Committee either next week or the week after, and then it's on to the full Senate. Senate Democrats have not ruled out blocking a final vote on Alito with a filibuster, a refusal to stop debating his nomination. Shortly before the Senate left for a monthlong recess, Majority Leader Bill Frist renewed his warning that this could prompt him to eliminate judicial filibusters altogether by simple majority vote. As NPR's David Welna reports, that threat to use the so-called nuclear option led to an unusual exchange on the Senate floor.

DAVID WELNA reporting:

A day after Majority Leader Frist warned Democrats that if they blocked a vote on Alito he'd strip them of the power to filibuster court nominees, 88-year-old West Virginia Democrat Robert C. Byrd, the Senate's most senior member, rose to challenge him on the Senate floor.

Senator ROBERT C. BYRD (Democrat, West Virginia): You know, that's not a great idea. A fellow could fall off a turnip truck and think of that. There's not anything brilliant about saying that if there's a filibuster, we've got all we need to--as the might and power of a majority to vote the rules wrong and interpret things differently and it can be done. No doubt about it.

WELNA: Byrd declared that doing away with the right to filibuster court nominees would be denying freedom of speech to members of the Senate minority. That prompted Frist to respond, which quickly led to the kind of debate rarely heard these days in the Senate.

Senator BILL FRIST (Republican, Tennessee; Majority Leader): I don't think we'll see a filibuster. I don't think people really want a filibuster. I think there's a lot of posturing there. If the Democrat side choose to filibuster, choose to obstruct, choose to stop this nation's business, if the other side pulls the issues out, I'll use all the tools that I have to simply get an up-or-down vote on the floor of the United States Senate for the president's judicial nomination.

WELNA: Byrd replied that every senator has the right to filibuster a nominee, even if it's just because he or she objects to that nominee's hair being parted on the left or the right. And the Constitution, he said, as he pulled a copy of it from his breast pocket, simply calls on senators to advise and consent on nominations.

Sen. BYRD: It doesn't say how that consent will be measured. It doesn't say it has to be an up or down vote. Nothing in the history, nothing in the Constitution says that. Yeah, if you can point that out in the Constitution to me where it says a nominee shall have the right to an up-or-down vote, can the senator point that out in the Constitution to me? Can the senator point that out in the Constitution to me?

Sen. FRIST: If the distinguished senator from West Virginia would let me answer, I would be happy to.

Sen. BYRD: Yes.

Sen. FRIST: It's not in the Constitution...

Sen. BYRD: Right.

Sen. FRIST: ...that a United States senator specifically has the right for an up-or-down vote. I'm saying the dignity of the institution to give advice and consent deserves an up-or-down vote on the United States, and what the Constitution does say, which is why it is called the constitutional option, not because it's written in the Constitution, is that this body makes its own rules. And the constitutional option is basically just that.

WELNA: Not once did Frist refer to the move he contemplated as the nuclear option. He did, however, try to patch things up with Byrd.

Sen. FRIST: I very much respect the comments of my distinguished colleague from West Virginia. He teaches me all the time, and I listen and he knows I listen. As we go through, we disagree on certain principles. I don't think one--I know one is not freedom of speech, respect for the Constitution and respect for this institution. I give the floor.

WELNA: But Byrd would not be mollified. He had this warning for Frist. `Future generations,' he said, `will not rise up to bless a senator who tries to destroy freedom of speech in the Senate.'

Sen. BYRD: He ever tries that, he's going to see a real filibuster. If I'm living and able to stand on my feet or sit in my seat, I respect this as a senator but I respect the Senate even more. I respect freedom of speech even more. And if the senator wants a fight, let him try.

WELNA: Should there be a showdown over Alito, filibusters and the nuclear option, it would likely come later this month. David Welna, NPR News, the Capitol.

SIEGEL: Our coverage of the Alito hearings continues at npr.org, where you can hear highlights from the testimony, read analysis and download a nightly podcast program on the day's proceedings.

MICHELE NORRIS (Host): This is NPR, National Public Radio.

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