The Filibuster Nuclear Option
Much has been written recently of the possibility of the Republicans, via the office of the President of the Senate (VP Dick Cheney) declaring the non-filibuster filibuster un-constitutional, having a vote and thus being able to overcome the Senate Rules that allow the Majority Leader to accept from the Minority a pledge to filibuster any given nominee. The effect then is a non-filibuster filibuster.
Of course, the Democrats have threatened massive retaliation in the sense of the old Mutually Assured Destruction Doctrine to make passage of any bill impossible. The Republicans of course have traditionally had no guts to force their will on the Democrats, relying instead on getting a few Dems to vote with them in exchange for something else.
There are some new winkles in the political fabric however, namely the loss of the seat held by Senator Tom Daschle, primarily because John Thune campaigned on Daschle's obstructionism, running as a "conservative" only at election times and changing his electioneering stance from his senatorial stance on as many topics as he thought he could get away with.
This has produced some consternation in a Senate where a number of Democratic Senators are from now "Red States." Among these are Jeff Bingaman of New Mexico; Robert Byrd of West Virginia (who is probably retiring anyway); Conrad Kent of North Dakota; Ben Nelson of Nebraska; and maybe even a few Senators from states where Kerry won by only the slimmest of margins including ,Wisconsin ,Pennsylvania,Michigan, Minnesota and possibly even Oregon where Kerry won by only 4%. Can the Democrats protect these seats? Likely some of them, but are the incumbents who want to run again in 2006 sure? If they are, they need to re-think that. Bush could, with luck and hard work, make this coming off presidential election cycle another republican grab.
So what can the Republicans do between now and '06 to make sure that judicial nominees at least get an up or down vote without changing the time honored concept of filibuster? Simple, make the filibuster a real filibuster. Insist that the Democrats man the mattresses so to speak, schedule non-stop chit-chat, read from the congressional record or the newspapers (the Gray Lady would be good for this - not good for much else these days), actually filibuster.
This would have, I think, several attractive consequences. For one, the people would get to see a real filibuster, after all, we haven't had one since the Democrats filibustered the Civil Rights Act of 1964 when Richard Russell of Georgia and 18 other Southern Democrats filibustered the act for almost a year. Only when Russell capitulated to Mansfield and Humphrey did the vote finally get taken with the Civil Rights act passing by a vote of 27 against passage to 73 for. LBJ signed the Act within hours. Secondly, it would show the people that either there was clear and good reason to vote down a nominee or that the loyal opposition is really just about obstructionism.
OK, you think, that was then, this is now, a so called "gentleman's filibuster" makes it much nicer as a way to protest action in the Senate. Well, yes and no. The Gentlemens Filibuster agreement does make protest easier, but it hinders the Advice and Consent role of the Senate when it comes to Judicial Nominations. Each nominee has a hearing before the Senate Judicial Committee and that committee then sends it to the floor for a vote or, recommends that it not be sent to the floor. When a party (Democrats or Republicans) then filibuster that process, one possibility is that the filibuster actively interferes with a legal duty of the Senate.
So, what should Frist and the Republicans do? Make 'em talk till they are blue in the face. The worst that can happen is that Congress can't pass any laws for the time being, and that could be helpful to us all.
Update(1/11/05 ~ 5:34 AM CST) Excellent thoughts on the filibuster at The View From MY Right here.