In the Senate, Fireworks Over the 'Nuclear Option' There are signs of easing tensions in the battle over judicial filibusters used by Senate Democrats to block some of the president's judicial nominees, NPR's David Welna says in the latest Pennsylvania Avenue column.
NPR logo In the Senate, Fireworks Over the 'Nuclear Option'

In the Senate, Fireworks Over the 'Nuclear Option'

There's been a long-simmering dispute in the Senate over Democrats' use of filibusters to block some of President Bush's most controversial judicial nominees. And things seemed to be reaching a boiling point before lawmakers left town for the Easter recess.

After the Senate Democrats' weekly Tuesday caucus luncheon, Senate Minority Leader Harry Reid trooped down the east steps of the Capitol with a couple of dozen of his colleagues to make a full-throated warning to Senate Republicans. With the Capitol's dome as a telegenic backdrop, Reid accused his GOP colleagues of being "drunk with power." Their threat of changing the Senate rules to ban the filibusters that stopped ten of Bush's judicial nominees "is not about judges," Reid said. "It is about the desire for absolute power."

Reid saved his harshest words, though, for a letter he sent that same day to Senate Majority Leader Bill Frist. In it, Reid put his Republican counterpart on notice that should Frist choose to exercise "the nuclear option" (the Armageddon-evoking term Democrats use to describe a GOP banning of the judicial nominee filibuster), "the majority should not expect to receive cooperation from the minority in the conduct of Senate business."

Taking Issue

Democrats vow to disrupt all Senate business if Republicans end their right to block judicial nominations. Essayists debate the merits of the filibuster.

Those are fighting words from a man who likes to say he'd rather dance than fight. Democrats truly could tie the Senate in knots, since most Senate business requires unanimous agreement to proceed. Reid's letter to Frist, in effect, was a "make my day" dare to squeeze the nuclear option trigger.

The response from Frist came four minutes after Reid's appearance at the Capitol steps. "To shut down the Senate," he wrote in an e-mailed statement, "would be irresponsible and partisan. The solution is simple: return to 200 years of tradition and allow up or down votes on judges."

Two days later, the Senate Judiciary Committee confirmed the first of the seven appellate court nominees blocked in the last Congress and renominated in a defiant move by Bush. New York Democrat Charles Schumer predicted just before the committee's party line vote that William G. Myers' nomination will "pull the trigger on the nuclear option." That's because its next stop is the Senate floor, where Democrats plan to filibuster the former lawyer for mining and grazing interests.

So Senate Republicans and Democrats appear headed on a collision course when they come back after their Easter recess. Yet despite the bravado, the nuclear option is enormously risky and Frist does not seem inclined to use it if there's any other way out of the impasse. Too much is at stake: if Reid made good on his threatened retaliation, it could imperil all the legislation the White House still wants finished, including caps on medical malpractice suits and a restructuring of Social Security; what's more, Frist has presidential ambitions for 2008, and his leadership of a chaotic Senate would not be much of an asset for a man seeking to lead the entire nation. Curtailing judicial filibusters would certainly please many hardcore conservatives, but even some of them recognize that Republicans could end up in the Senate minority stripped of the power to block Democratic court nominees by filibuster.

A few hours after Myers' confirmation in committee, Frist sent a remarkably conciliatory letter to Reid. Re-dubbing the nuclear option "the Constitutional option," Frist assured Reid that "I would undertake such a course only if it were clear to me that reasonable alternatives were not possible." The majority leader promised that when Congress gets back from Easter recess, he would offer a proposal that he characterized as taking into account "complaints both parties have had with the confirmation process." Without giving any of the plan's details, Frist said it would "protect the Constitution, validate our duties as Senators, and restore fairness to a process gone awry."

Those conciliatory words may help lower the rising temperatures in the Senate chamber. Yet it's difficult to imagine any proposal from Frist that would not entail an eventual up or down, simple majority vote on judicial nominees. And it's just as difficult to imagine Democrats accepting such a proposal. Still, in his response to Frist's letter, Minority Leader Reid seemed to be dancing once again rather than fighting. He welcomed the pledge by his Republican counterpart not to pursue "the nuclear option" if there are reasonable alternatives. Reid added that he was encouraged by "the more constructive" approach Frist was taking… as long as it was consistent with constitutional checks and balances.

Frist had a compelling reason to turn down the burner and let passions cool over the judicial nominations. His letter to Reid was sent only about an hour before the Senate approved, by voice vote, legislation that would force Terri Schiavo's case into a federal court. There were at least two Democratic senators opposed to that bill who could have complicated its swift passage on an evening when senators were also rushing to finish votes on the budget. In the end, neither of those Democratic senators objected to bringing up the Schiavo bill. Its final passage surely would not have been possible without Reid's cooperation. It's an accomplishment that could bring Frist more dividends than he'd likely get from the nasty standoff over judges.

The lesson here for Frist may be this: he stands to gain more politically from accommodating his Democratic colleagues than by going nuclear and risking a legislative meltdown. And the lesson for Reid? Keep dancing.