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Use the nuclear option

By Henry Lamb
web posted March 14, 2005

It's just plain wrong for a handful of Senators -- Democrats or Republicans -- to prevent the Senate from voting on any presidential nomination. The Constitution is abundantly clear: the President is empowered to nominate officials and judges; the Senate is required to "advise and consent" -- or not. The Senate is not authorized to manufacture a procedural obstacle course that prevents the Senate from voting on the President's nominees.

Senate Democrats successfully blocked a vote on 10 presidential nominations during President Bush's first term. They are preparing to do the same thing in the second term. The remedy is simple: the Republican majority can change the Senate rules to exempt presidential nominations from filibuster. Democrats call this remedy the "nuclear option," and vow they will bring all Senate action to a screeching halt if the Republicans do it.

Were the shoe on the other foot, and Democrats controlled Congress and the White House, they would not hesitate one minute to change the rules to prevent a minority filibuster of presidential nominations. Senate Republicans should immediately change the rules so every presidential nomination is quickly and thoroughly reviewed in committee, fully debated on the Senate floor, and decided by a recorded vote.

This procedure should prevail, without respect for which party is in power.

Majority Leader Bill Frist's threat to use this "nuclear option," enraged Senate Democrats. In an unusually eloquent tirade, Senator Byrd compared the Republicans' threat to change the rules to Hitler's regime: "Hitler turned the law inside out and made illegality legal. That is what the nuclear option seeks to do."

In 1979, however, when the shoe was on the other foot, Senator Byrd told a Democrat Senate majority "This Congress is not obliged to be bound by the dead hand of the past. . . . ." and proceeded to lead the Senate to several rule changes to prevent a Republican minority from blocking presidential nominations.

In truth, it is the filibuster rule that makes illegality legal. The Supreme Court has consistently held that except for the supermajority votes required by the Constitution (treaties, veto override, Constitutional Amendments), all other votes require only a simple majority. The Constitution does not specify a supermajority for presidential nominations. A Senate rule that effectively requires a supermajority, is, on its face, unconstitutional.

The Republican majority should change this rule immediately -- and live with it, when they are not in the majority.

Democrats will, no doubt, scream, cry foul, and try to get even. Senate Minority Leader, Harry Reid, said if Republicans try to use the nuclear option, "...they will rue the day they did it, because we will do whatever we can do to strike back. I will, for lack of a better word, screw things up."

Democrats have developed a pattern of acting like spoiled children when they don't get their way. If they make good on Reid's promise to "screw things up," and block important legislation in this session of Congress, Republicans could very well increase their majority in the 2006 elections. Voters everywhere are weary of the whining, and petty partisan reaction to everything a Republican says.

The nuclear option should be a simple matter, with Republicans holding the majority in the Senate. It is not. A few liberal New England Republicans rarely let the Constitution influence their votes. Senators McCain, Hagel, and Specter have also expressed reluctance to confront the Democrats on this issue. Majority Leader Frist has said that "one way or the other," presidential nominations will be removed from the filibuster. Now is the time to do it.

Delay in confronting this issue will only postpone and intensify the Democrats' determination to "screw things up." It is far better get it over, with the first judicial nominee, than to waste time playing procedural games to gain political advantage. If the rules are changed now, it will change the nature of the battle when comes to the inevitable nomination of a Supreme Court judge.

Without the filibuster foolishness in the way, perhaps the debate will focus on real issues and qualifications, rather than procedural one-upsmanship.

Republicans who have neither the stomach for confrontation, nor the conviction of Constitutional responsibility should be rounded up by the leadership and retrained. There are too many urgent issues to be resolved by this Congress, to let partisan politics get in the way.

The Democrats will scream, holler, stomp their feet, and try to get even. They have not yet learned that no one gets ahead by getting even.

Henry Lamb is the executive vice president of the Environmental Conservation Organization (ECO), and chairman of Sovereignty International.


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