Nuclear Option Need Not Be Inevitable

Posted April 13, 2005 at 3:49pm

A showdown is brewing in the Senate over use of the “nuclear option” — the procedure that would would allow 50 Senators to bar Democrats’ reliance on filibusters to continue opposing 12 of President Bush’s judicial nominees. Is there a way to avoid it? There may be — if the will exists.

The background of the dispute is straightforward enough. The president has asserted that he had discharged his constitutional responsibility in making these nominations and has urged the Senate to fulfill its own “constitutional duty” by voting the candidates “up or down.” Bush and many GOP Senators have contended that the Democrats’ employment of filibusters to block judicial nominees is unconstitutional, and Senate Majority Leader Bill Frist (R-Tenn.), has threatened to alter this venerable procedure.

But Democrats, led by Minority Leader Harry Reid (D-Nev.), have pledged that Republican detonation of the “nuclear option” will provoke massive retaliation by the Democrats. Reid is a master parliamentarian, so he knows exactly how to toss sand in the Senate’s gears.

Upon the Senate’s return from spring recess, Republicans and Democrats appeared more conciliatory. Frist announced that he would cooperate with Democrats to secure confirmation votes on Bush’s nominees, rather than immediately deploying the nuclear option. For his part, Reid lauded Frist’s overture and stated that he would consider ways of avoiding a Senate floor battle.

Several persuasive reasons mandate exploring alternatives to the nuclear option. First, if 40 Senators oppose a nominee, perhaps that individual should not be confirmed. Second, the filibuster has often served the nation well by protecting a minority’s interests. Third, in the judicial appointments context, the filibuster should foster selection of judges who are highly competent and broadly acceptable politically.

Fourth, the nuclear option’s invocation may well have dire consequences: It will bring all non-essential Senate business to a halt. Should this occur, the selection process’ already deteriorated condition will be worsened, further undermining public respect for the executive, the Senate, the judiciary and perhaps the judges confirmed.

Moreover, the case for severe Republican grievances rings somewhat hollow. Judges appointed by Republican presidents already compose majorities on most appellate courts. And it is worth remembering that the Senate confirmed 204 Bush judicial nominees in his first term.

Here are several alternatives which Sen. Frist ought to seriously consider. One efficacious approach would be consultation. If the chief executive informally broached nominees with Democrats prior to their official nomination, confirmation would proceed more smoothly. Reid has observed that then-President Bill Clinton consulted with the GOP when successfully appointing Justices Ruth Bader Ginsburg and Stephen Breyer.

President Bush could also rectify or ameliorate prolonged and intractable disputes over judicial selection by addressing valid Democratic concerns over the many Clinton nominees whom the GOP Senate majority never processed. Assuming for the purposes of argument that “horsetrading” of judgeships is appropriate, several federal appeals courts are obvious candidates.

First, the logjam over 6th Circuit vacancies would break, if President Bush replaced one of his four nominees with Clinton nominees Kathleen McCree Lewis or Judge Helene White, whom the Republican Senate majority failed to consider seriously.

Second, the gridlock over the D.C. Circuit might ease were Bush to replace one of his three nominees with Clinton nominees Elena Kagan or Allen Snyder. The president could even substitute Kagan or Snyder for California Supreme Court Justice Janice Rogers Brown and nominate her instead to the 9th Circuit. The four 9th Circuit vacancies concomitantly provide fertile ground for reaching accommodation that might limit the ongoing, divisive battles.

At the moment, deployment of the nuclear option may appear inevitable. But these options show that it doesn’t need to be. If Senate leaders can live up to their conciliatory rhetoric, they can avoid a potentially devastating showdown.

Carl Tobias is a professor at the University of Richmond School of Law.