April 10, 2005

‘Nuclear Option’ Could Break Judicial Logjam

Batten the hatches.

President Bush has resubmitted to the Senate seven of the ten U.S. Circuit Court nominees whom Democrats filibustered in the last Congress.

If certain Senators try the tactic again, Senate Majority Leader Bill Frist vows to invoke an up-or-down vote. Opponents dub this a “nuclear option” -- as in “blow the place up.”

The dovecote is aflutter. “Nuclear” conjures up Armageddon while little girls pick petals off daisies. Hey. It destroyed Barry Goldwater in 1964 and has served liberals well.

Included in the original nominees was Miguel Estrada who would have been the first Hispanic judge at that level. After two years of character assassination by entrenched Dem bulls, he declined further torment.

Filibuster is an old-Dutch term for “pirate.” The word is germane for a maneuver to prevent a vote by popular majority.

It has been around since 1841when the Democratic minority filibustered a banking bill by Sen. Henry Clay. He threatened to change Senate rules, as in the House, to limit debate. Opponents gave up.

At the request of President Woodrow Wilson in 1917 - - as the First World War approached -- the Senate adopted Rule 22. This allowed ending a debate with a two-thirds majority vote.

At that time, two-thirds of the vote was 67. Subsequently the threshold was lowered to the current three-fifths, or 60 votes.

The 60-vote tactic is formally known as “cloture.” Opponents call it the “gag rule.”

Frist says he will abolish the cloture rule the same way it was originally adopted -- by a simple majority vote of 51. Thereafter, debate could be closed by a simple majority – as in the House.

Unfortunately, the U.S. Constitution is not specific about the power of a simple majority. The Center For Individual Freedom explains:

“The Constitution explicitly sets forth seven instances in which super-majority votes are necessary for the federal legislature to act – such as over riding a presidential veto.

“Otherwise, it states in Article 1, Sec. 3, that the Vice-president of the United States shall break tie votes in the senate ‘when they be equally divided.’

“The clear import of these provisions is that Congressional action – in both the House and Senate – is to be by simple majority except in the instances specified.”

In legal lingo, this boils down to: “Enumeration of one thing in the Constitution implies exclusion of all others.”

English common law usage devolving from the Magna Carta – about which the Constitution’s writers were well aware – is still the understanding that a simple majority is one more than half.

In the Senate today, Sen. Frist leads a majority of 55 Republicans. This is 10 more than the Democratic/Independent minority. One would think he has votes to spare in changing the rules.

Not so. Rounding up senatorial votes is like herding cats. Every senator believes that the person he sees in the mirror every morning while shaving is the next president of the United States.

This includes Senator, Doctor, Majority Leader Frist.

The filibuster is a potent weapon in the kit bag of determined minorities – sometimes for good, sometimes for obstructing good. Whatever. It has become integral to our system of checks and balance.

President Wilson in 1917 failed to break a filibuster that denied the arming of merchant vessels.

President Franklin D. Roosevelt in 1937 failed to break a filibuster against his proposal to “pack” the Supreme Court with three extra judges to speed up anti- Depression measures.

Dixiecrats in 1964 filibustered the Civil Rights Act, but were defeated by a coalition of Northern Democrats and Republicans.

The inordinate loss of constructive work in the Senate led to a “gentleman’s understanding” that a blockading senator had only to file an intent to filibuster. This was sufficient to require a super- majority vote on any bill targeted.

This was Alice-in-Wonderland reasoning that Senator Plurality (one seat) Leader Tom Daschle used to raise the bar on Republican proposals.

This outrageous warping of common sense and Senate tradition cost Daschle his job in the last election.

Common usage and strict interpretation of the Constitution calls for simple-majority decisions. Beyond that we are reduced to quibble.

Let’s nuke rule 22, and debate disagreements at great length. It may limit the number of laws imposed on the electorate.

Lindsey Williams is a Sun columnist who can be contacted at linwms@lindseywilliams.org