Join me, if you will, on a little journey through the Constitution, the Senate Rules, and the logic behind the nuclear option that Bill Frist is so fervently trying to force down the throat of the United States Senate. Because, building on the variety of arguments already made as to why the nuclear option is misguided, it appears to me that it is fundamentally incoherent. So incoherent, in fact, that every Senator who votes in favor of it is at the very same time announcing to the world that he or she should be removed from office.
As a preliminary matter, we need to understand how the nuclear option is going to work. At some point during the debate on Priscilla Owen's nomination to the Fifth Circuit, someone will raise a point of order, asking whether
Senate Rule XXII's requirement of a 3/5 vote to invoke cloture is unconstiitutional. Per
Senate Rule XX, such questions of order are decided by the Presiding Officer, or may be submitted by the Presiding Officer to the Senate itself for decision. Either way, the Senate itself will end up making the ultimate decision, as any decision by the Presiding Officer on a question of order is subject to appeal to the Senate.
For the nuclear option to succeed, then, 50 Senators (assuming that a tiebreaking vote, if needed, would be in favor of the nuclear option) need to decide that filibusters of presidential nominees are unconstitutional. This argument, supposedly based on the "Advice and Consent" clause in Article II, § 2, cl. 2 of the Constitution, is specious on its face and even Frist himself as conceded that it isn't really true. But the absurdity of the argument is not my point.
Instead, consider the following. First, the idea that the nuclear option applies only to judicial nominees doesn't even pass the laugh test. After all, the "Advice and Consent" clause applies to a wide variety of nominees:
[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law
Basically, any presidential appointment requires the advice and consent of the Senate; the requirement is not limited to judges.
OK, so what? Well, this means that if the filibuster of judges is unconstitutional, then the filibuster of any other nominee is equally unconstitutional. A fact that is important because many Republican Senators can fairly claim that they have not filibustered a judicial nominee (Frist, of course, has no such luck, but that story has been amply covered before). Unfortunately for Senators Wayne Allard, Robert Bennett, Kit Bond, Sam Brownback, Jim Bunning, Conrad Burns, Thad Cochran, Larry Craig, Mike DeWine, Pete Domeneci, Michael Enzi, Bill Frist, Chuck Grassley, Judd Gregg, Orrin Hatch, Kay Bailey Hutchinson, Jim Inhofe, John Kyl, Trent Lott, Dick Lugar, John McCain, Mitch McConnell, Rick Santorum, Jeff Sessions, Richard Shelby, Arlen Specter, Ted Stevens, Craig Thomas, and John Warner, they have all filibustered some presidential nominee falling under the Constitution's "Advice and Consent" clause.
What is the point of this? Let's turn to another section of the Constitution, one highlighted by Senator John Kerry in his tremendous speech today: Article VI. It states:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Now, each and every Senator swore to uphold the Constitution when he or she took office. All of the GOP Senators listed above have filibustered presidential nominees in the past. Most, and perhaps all, of them apparently believe that such filibusters are unconstitutional.
Ergo: If the nuclear option succeeds, all of the Senators listed above have violated their oath of office while serving in the Senate, are unfit to serve, and should be removed from office forthwith. By voting for the nuclear option, they will essentially admit to breaking their oath. After all, if filibusters of presidential nominations are unconstitutional, these folks surely have not worked to uphold the Constitution; they've actively subverted it.
That conclusion, unlike the nuclear option, has the decided advantage of being supported by what the Constitution actually says.