Up until now I have taken it somewhat for granted that the Senate Rules can be changed as the Republicans claim.
Rule changes in the Senate require 67 votes (2/3) according to Senate Rule XXII. So in order to change the filibuster rule, the rule change rule would have to be changed first. So how are they going to do that?
Essentially they must violate the
Senate Rules. According to
PFAW, here is the scenario:
Senator Frist brings a controversial nomination to the Senate floor.
Senate Democrats filibuster the nomination.
Senator Frist raises a point of order that debate has continued long enough, that any further debate would be dilatory, and that a vote must be taken within a designated time frame. (This is the "nuclear" part. Under Senate rules, Senator Frist would have to file a cloture motion in order to end debate. A cloture motion requires 60 votes to end the debate and bring the matter to a vote.)
Vice President Cheney - serving as the presiding officer of the Senate - sustains the point of order.
Senator Reid or another senator appeals the ruling of the chair.
A Republican senator makes a motion to table the appeal.
The Senate votes on the motion to table the appeal. Such procedural votes cannot be filibustered, so only 51 votes would be needed to table the appeal.
Fifty senators vote to table the appeal, Vice President Cheney casts the tie-breaking vote, and the appeal is tabled. This sustains the ruling of the chair - that debate on the nomination must end.
By requesting and granting the obviously invalid point of order, Frist and Cheney would be breaking their oaths of office. Frist would obviously know that the filibuster debate was in order, and so would Cheney.
Of course, getting Frist and Cheney to break the rules is no real problem. The question is whether getting their judicial nominees is worth the price of breaking the rules and ending any other business they bring forth.
The consequences for Frist are probably the worst. He wants to run for office again, maybe even for President. Here is John Dean's analysis:
Senator Bill Frist, in particular, should consider giving up the nuclear option. Frist plainly wants to be President of the United States. But if he pulls the trigger on the nuclear option, that will be the end of his chances.
Certainly, using the "nuclear option" will give Frist an IOU with the hard right. It may even gain him the Republican nomination in 2008 or thereafter. But it will also guarantee that when he runs, he will lose. When the rest of the country understands that it was Frist who was responsible for the destruction of the Senate, his chances for the Presidency will be over.
So what can be done?
Rule XIX "8. Former Presidents of the United States shall be entitled to address the Senate upon appropriate notice to the Presiding Officer who shall thereupon make the necessary arrangements."
So Clinton and Carter should request and speak about the damage these renegades will do to our country and the government by breaking the rules. I don't think Bush Sr. would make an appearance, although I seriously doubt he would support this nuclear option.
Should the House or Senate change during the next election (as would likely happen), certainly Frist and Cheney could be impeached and expelled.
Court Action can be filed after the nuclear option. Frist and Cheney could be called to task for incorrecly applying the Senate rules. This certainly has a significant chance of winning because they are so obviously violating the rules. Frist's point of order is not valid by any stretch of the imagination.
Here is a CRS Report for Congress which states that "From 1949 through
2002, cloture was sought on 35 nominations, and invoked on 21. Only three of the 35
nominees were not confirmed; all three were among those on whom the Senate rejected
cloture." So there is enormous precedent for filibuster during nominations. This should be publicized much more than it has.