Tuesday, May 17, 2005

Update on the nuclear option

Norman Ornstein at AEI explains the utter lawlessness of the "nuclear option" with far more precise institutional knowledge than I could muster on this topic in my earlier post:
The Senate is on the verge of meltdown over the nuclear option, an unprecedented step that would shatter 200 years of precedent over rules changes and open up a Pandora's box of problems in the years ahead. The shaky bipartisanship that holds the Senate together--in a way that is virtually absent in the House--could be erased. Major policy problems could be caught up in the conflict. The Senate itself would never be the same.
Let us put aside for now the puerile arguments over whether judicial filibusters are unprecedented: They clearly, flatly, are not. Instead, let's look at the means used to achieve the goal of altering Senate procedures to block filibusters on judicial nominations.
Without getting into the parliamentary minutiae--the options are dizzying, including whether points of order are "nested"--one reality is clear. To get to a point where the Senate decides by majority that judicial filibusters are dilatory and/or unconstitutional, the Senate will have to do something it has never done before.
Richard Beth of the Congressional Research Service, in a detailed report on the options for changing Senate procedures, refers to it with typical understatement as "an extraordinary proceeding at variance with established procedure."
To make this happen, the Senate will have to get around the clear rules and precedents, set and regularly reaffirmed over 200 years, that allow debate on questions of constitutional interpretation--debate which itself can be filibustered. It will have to do this in a peremptory fashion, ignoring or overruling the Parliamentarian. And it will establish, beyond question, a new precedent. Namely, that whatever the Senate rules say--regardless of the view held since the Senate's beginnings that it is a continuing body with continuing rules and precedents--they can be ignored or reversed at any given moment on the whim of the current majority.
There have been times in the past when Senate leaders and presidents have been frustrated by inaction in the Senate and have contemplated action like this. Each time, the leaders and presidents drew back from the precipice. They knew that the short-term gain of breaking minority obstruction would come at the price of enormous long-term damage--turning a deliberative process into something akin to government by the Queen of Hearts in "Alice in Wonderland."
Rule XXII is clear about extended debate and cloture requirements, both for changing Senate rules (two-thirds required) and any other action by the Senate, nominations or legislation (60 Senators required). Ignored in this argument has been Senate Rule XXXI, which makes clear that there is neither guarantee nor expectation that nominations made by the president get an up-or-down vote, or indeed any action at all.
It reads: "Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President."
By invoking their self-described nuclear option without changing the rules, a Senate majority will effectively erase them. A new precedent will be in order--one making it easy and tempting to erase future filibusters on executive nominations and bills. Make no mistake about that.
The precedent set--a majority ignoring its own rules to override longstanding practice in one area--would almost inexorably make the Senate a mirror image of the House, moving the American system several steps closer to a plebiscitary model of government, and the Senate closer to the unfortunate House model of a cesspool of partisan rancor.

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