Senator Inhofe, of Oklahoma, said on the floor today that is its time for senators to stop being afraid, and “learn to love the bomb.” He was referring to the Nuclear or Constitutional Option, which would seek a ruling from the president of the senate on a point of order declaring that judicial nominations cannot not be filibustered. Senate rules currently require a 3/5 vote to invoke cloture, thereby stopping a filibuster, and a 2/3 vote to change the rules on the filibuster. Sustain a ruling of the president on a point of order would only require a majority. There are several variants on the Nuclear Option (see article from The Hill ), but the end result would be the same: no more judicial filibusters.
I oppose changing the Senate rules in this manner. It would drastically alter the traditions of the Senate, which have historically protected the rights of its members to unlimited debate.
The first organized filibustered was in 1841. It was not until 1917, when the Senate created cloture, that a filibuster could be stopped. Further, it was not until 1949 that the Senate could invoke cloture on executive nominations. Between 1949-2002, and prior to the recent judicial filibusters, cloture was sought on 35 nominations, it was invoked on 21, and rejected on 7. Out of those 7, 3 nominations failed to be confirmed by the Senate, one being the filibuster of Supreme Court Justice Abe Fortas in 1968. (CRS report)
Filibustering judicial nominations is not unprecedented, and it is not contrary to Senate rules. It is an extreme tactic, and seldom used with the effectiveness of late. But these extreme measures are justified in order for the Senate and the Minority to retain an essential check on executive power.
That being said, the stage is set, and Vice President Cheney is ready to drop the bomb. I can’t help but salivate at the prospect of watching the fallout. The Democrats declare that in response to the Nuclear Option they will radically alter the way the Senate does business. No more comity, no more unanimous consent request, no more dispensing with the readings of bills. As a student of government I’m intrigued by this prospect, and can only say to Senator Inhofe, “Make my day.”
