May 25, 2005
NYC Letter: Nuclear Baloney
Well, it all sounded very scary.
The Nuclear Option.
What it is is a change in the rules by the Senate proscribing the use of a filibuster to block up-and-down votes on judicial nominees.
The Left beshat themselves with incontinent fears and wild recountings of a hallowed but imperiled Senate tradition. America was about to become one vast gulag. Everywhere Republican jackboots were being spit shined. The very foundations of the universe itself were about to shake -- or at least jiggle a bit.
A Senate rule such as the filibuster may only be changed by the consent of a two-thirds majority. At least, that's the rules of the Senate as they stood for 200 years, but Bill Frist and George W. Bush don't like it. So the first rule they'll have to break is the rule that says you need 67 senators to change a Senate rule.
"Republicans want to blow up 200 years of Senate history and change the rules simply because they aren't getting their way on a handful of radical nominees."
And the Fresno Bee (pg. 8) also worries that inviolable tradition is being up-ended:
Senate Majority Leasder Bill Frist claims that, after 200 years of Senate tradition, the filibuster of federal judicial nominees is "unconstitutional." That claim is as novel as it is belated. Frist's rewriting of history is shameful -- and many Republicans know it.
What all these distrait voices have in common is that they are wrong.
First Mr. Zúniga of Daily Kos. The rule to which he refers is Senate Rule XXII. The relevant passage reads:
"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
Now, we do not pretend to parliamentary authority, but the rule makes a deliberate distinction between the two clotures. For the business of the Senate it takes an affirmative vote of three-fifths of the Senators duly chosen and sworn. That would be an absolute 60 Senators. For changing the rules of the Senate it takes an affirmative vote of two-thirds of the Senators present and voting. That would be an opportunistic super-majority depending on the total number of Senators in attendance for the vote who actually cast a vote.
We have read other commentators, like Mr. Zúniga, who see this as an absolute 67 Senators. But the actual language of the rule itself couldn't be plainer.
On to that 200 hundred years of tradition. Here is a brief history of the filibuster's inviolable tradition:
The Senate's rules have allowed unlimited debate, or filibusters, since 1806 [that would be shy of the purported 200-year tradition claimed], when senators dropped a rule that allowed a majority of the Senate to put an end to discussion and call for a vote. For the next 111 years, there was no way to stop a filibuster once it had started. But in 1917, when filibusters were blocking Woodrow Wilson's plans for World War I, the Senate adopted Rule XXII, which allowed senators to end a filibuster by a two-thirds vote on a motion to cut off debate -- a procedure called "cloture." In 1975, the Senate amended Rule XXII so that cloture required, in most cases, the vote of not two-thirds but rather three-fifths of the senators. In today's 50-state, 100-member Senate, that means it takes 60 rather than 67 senators to put an end to most filibusters.
From 1917 to 1949, the requirement for cloture was two-thirds of those voting. As civil rights loomed on the Senate agenda, this rule was revised in 1949 to allow cloture on any measure or motion by two-thirds of the entire Senate membership; in 1959 the threshold was restored to two-thirds of those voting. After a series of filibusters in the 1960s over civil rights legislation, the Senate in 1975 revised its cloture rule so that three-fifths of the Senate (usually 60 senators) could limit debate.
The filibuster missed out on the first 17 years of Senate tradition (1788-1806), with, by our count, the inviolable filibuster tradition violated (scil., the Senate amended the rules) 4 different times. This is not just gaming points, it is to demonstrate the thinness of the grand claims.
It is important to understand what the filibuster isn't. It is not a Constitutional construction, that is, it is not essential to our governance. It is not law. It is a procedure by which the Senate conducts or obstructs its business. It is not marmoreal. It was absent at the dawn of the Senate, it has been altered severally, and if its exceptional intent is abused it can be gotten rid of either provisionally (as in the current "nuclear option") or entirely.
Nor does its demise crack the seventh seal. What must it be like to live day-to-day in a world threatened minute-to-minute by an impending Apocalypse that never manages to arrive? We can only look on and wonder.