Republicans, frustrated with Democrat obstructionism of President Bush’s judicial nominees, have publicly discussed a “nuclear option” for ending filibusters. The option under consideration would use a parliamentary maneuver to accomplish a rules change eliminating the power to filibuster judicial nominees.
The “nuclear option” faces major obstacles, not the least of which is its unfortunate name. The American public is understandably loath to resort to a “nuclear” solution to any problem, unless it is demonstrated to be the absolute last resort, to be employed only in the most dire circumstances.
The obvious question arises: is there some way to win this war without resort to the parliamentary equivalent of nuclear weaponry? In short, is there a “conventional warfare option” for ending filibusters of judicial nominees?
I believe there is.
My proposal is premised on a fundamental and indisputable fact: never in the history of this country has either party used the filibuster to deny a floor vote to any judicial nominee who had clear majority support in the Senate. All of President Bush’s nominees would win a floor vote if one took place. Preventing a floor vote under these circumstances is unprecedented.
I propose that the Republican majority highlight this fact, by forcing a floor vote on a non-binding resolution of support for each nominee who has been the victim of a Democrat filibuster. The Republicans could force this vote by using the same parliamentary tactics that they propose to use to force a floor vote on the nominations themselves. But the resolution I propose would not have any real-world effect, other then to force all 100 Senators to state publicly whether they would support a particular nominee — yes or no.
Such a proposal would accomplish several goals.
Most importantly, I expect that each of President Bush’s nominees would garner a “yes” vote from a majority of Senators. This would demonstrate in a concrete way that each nominee would be confirmed if a floor vote were allowed. It is one thing to make that assertion. It is quite another to prove it with an actual vote.
When the public sees in the headlines that Judge “Smith” received support from a majority of U.S. Senators, many will initially assume that Judge Smith has been confirmed. When people are told that, no, Judge Smith is still awaiting confirmation, the public is going to want to know why.
And then, just maybe, people will start to get it.
This procedure would make this point in a manner that would not come across like bullying. Rather than steamrolling Democrats and pushing Bush’s nominees through the confirmation process, Republicans would be seeking merely to communicate information to the public, concerning the level of support Bush’s nominees enjoy on the Senate floor.
Because this procedure is less confrontational than the “nuclear option,” it would be palatable to a larger segment of the public — and also to more liberal Republican Senators, who might shy away from a more direct, brass-knuckles maneuver like eliminating the judicial filibuster altogether. By getting “yes” votes from these Republicans, this procedure would demonstrate to Democrats that Republicans have the muscle to get even their most liberal Senators solidly behind George Bush’s judicial nominees.
Precisely because this procedure would make such an effective political point, Democrats would likely fight it tooth and nail. They will probably even try to filibuster it. And if their filibuster is ruled out of order, they will complain bitterly.
Fine. Let them. Such noisy complaints will only bring more publicity. And Republicans have a ready rejoinder: what are the Democrats afraid of? The votes won’t confirm any judges. They will simply answer the question whether these judges really have majority support on the Senate floor.
Are the Democrats really scared to let the American people hear the answer to that question? That is the question Republicans should be asking. It is a question that Democrats cannot answer.
I believe that if this procedure is employed, and President Bush’s nominees are concretely demonstrated to enjoy majority support in the U.S. Senate, the filibusters will collapse under their own weight.
And Republicans will have won by conventional means — without risking the fallout that inevitably comes with the use of a “nuclear option.”
UPDATE: Thanks very much to Howard Bashman for the link.
UPDATE x2: Beldar has an excellent post supporting the nuclear option. I wonder what he would think of my idea of preceding the nuclear option with conventional warfare, to see if it is enough to break the filibusters.
UPDATE x3 (5-3-05): Thanks to Mickey Kaus for the link. I have reopened comments on this thread.
I should stress that this proposal is not necessarily a substitute for the nuclear option. It may well be a precursor to it — but one that helps change the terms of the debate in Republicans’ favor.
In this sense, the proposal is like a series of air strikes at the beginning of a war. It may not win the war — but even if it doesn’t, it softens up the enemy for the eventual attack.
UPDATE x5 (5-5-05): More on the reasoning behind this proposal here.