Update [2005-5-3 15:12:43 by Armando]: From the diaries by Armando.
The Congress in recess for the week, and that leaves us still teetering on the brink of nuclear war in the Senate. Does Frist have the votes, or is he instead "really screwed?"
In case you've been trapped under something heavy and soundproof for the last month, you'll need a quick primer on the nuclear option and what it is, what it could turn into, and what it's not.
Just because Congress is out of session for the week doesn't mean it's time to sit back and wait this out. Pressure has been growing in every quarter over this momentous battle, and it shouldn't let up while the Senators are out of town. You surely won't find the other side letting things cool down.
If you have, in fact, been pinned under such a fallen object and you also happen to be a speed reader, you can take a few moments to review this handy, pocket-sized 20-part series on the whole thing.
The "Notes" will introduce you to the historical and procedural context in which the nuclear option was born, and dissect just about every argument that has yet been made that claims it's a "constitutional option." The "Footnotes" are additional observations on the politics of the nuclear option.
Nuclear Option Proliferation
Notes on the Nuclear Option -- Part II
Notes on the Nuclear Option -- Part III
Notes on the Nuclear Option -- Part IV
Notes on the Nuclear Option -- Part V
Notes on the Nuclear Option -- Part VI
Notes on the Nuclear Option -- Part VII
Notes on the Nuclear Option -- Part VIII
Notes on the Nuclear Option -- Part IX
Notes on the Nuclear Option -- Part X
Notes on the Nuclear Option -- Part XI
Notes on the Nuclear Option -- Part XII
Notes on the Nuclear Option -- Part XIII
Notes on the Nuclear Option -- Part XIV
Footnotes on the Nuclear Option
Footnotes on the Nuclear Option -- Part II
Footnotes on the Nuclear Option -- Part III
Footnotes on the Nuclear Option -- Part IV
Footnotes on the Nuclear Option -- Part V
Footnotes on the Nuclear Option -- VI
What You'll See on Nuclear Option D-Day
Those of you with lives might prefer one of the better "short" versions I've seen, courtesy of Grubbykid.com. The best part is where he says how great I am. If you print it out, circle this.
Here is how it might go down:
1. Senator Frist brings a nomination to the Senate floor
2. Sen. Frist asks for a Cloture Vote to gauge initial support - this requires three-fifths of the Senate to pass
3. Cloture will fail
4. Senate Democrats will start discussing the nominee
5. At some point it will be obvious that Senate Democrats will filibuster (Sen. Frist might actually ask this)
6. A GOP Senator will raise 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
7. The Parliamentarian of the Senate will rule that a supermajority requirement to cut off debate is not in order would not be based on previous precedents of the Senate
8. The Presiding Officer (probably Vice President Cheney) ignores the Parliamentarian
9. The Presiding Officer sustains the point of order
10. A Democratic Senator will appeals the ruling of the chair (it only takes one)
11. A Republican senator makes a motion to table the appeal
12. Senate Democrats will attempt to debate the appeal
13. The Presiding Officer will rule that debate is not in order
14. The Senate votes on the motion to table the appeal, it takes a simple majority (51) to table appeal
15. Fifty senators vote to table the appeal, Vice President Cheney casts the tie-breaking vote, and the appeal is tabled
16. This sustains the ruling of the chair - debate on the nomination must end
17. Senate Rules are changed only by a majority vote not a supermajority which is needed
Shorter shorter version: Vice President Dick Cheney will visit the Senate for the express purpose of breaking Senate rules in order to change Senate rules for the benefit of his party.
When Can We Expect It?
With Congress in recess, we know only this much for certain: the nuclear option, if Frist intends to trigger it, must wait until at least May 9th. That's next Monday. But unless Frist intends to do this on the sly, you probably won't see it until at least Tuesday the 10th, when most Senators will actually have returned from their home states or Jack Abramoff-paid junkets. Tuesday is also the day Vice President Cheney is most frequently sighted on Capitol Hill, and as you can see, Cheney may play an integral role in the nuclear option. Indeed, it's what he's expected to do that makes it nuclear.
In fact, here's an important point to take home with you: Don't let anybody fool you into believing that the nuclear option is nuclear because of what the Democrats say they'll do in response. The nuclear option is nuclear because it's the ultimate "Go [Cheney] Yourself." It's a declaration by Dick Cheney that the law is what he damn well says it is.
Compromises Shot Down. Who Won the CW Watch?
So, here we stand on the brink. Last week's "action" included a quick swap of trial balloon settlement offers. First, Reid and the Democrats floated a deal in which they'd consider letting the nominations of Richard Griffin (son of the GOP Senator who led the filibuster Republicans now deny took place against Abe Fortas' nomination as Chief Justice in 1968), Susan Neilson, and David McKeague go through, in exchange for the withdrawal of the nomination of Henry Saad. Why? DHinMI lays out the most plausible speculation on the deal's background (don't miss melandell's comment here - sixth one down!), and even adds a nice, new nugget about Saad's "better half." In exchange: a promise to preserve the right to filibuster judicial nominations, and maybe the revival of the nomination of a preferred Michigander, denied under the Clinton administration their oh-so-crucial "up-or-down votes" by the then-overbearing and always-sanctimonious Orrin Hatch.
Frist, of course, rejected the deal, the public line being, "At the end of the day, one will be left standing ... the Constitution, which allows up-or-down votes, or the filibuster," but the speculation being that the ultra-right wing base Frist will depend on if he's to have a snowball's chance in hell (and that's certainly where many hope he has it) of securing his party's presidential nomination.
Reaction to the compromise offer on the Democratic side was mixed, generating reviews ranging from "Reid outmaneuvers Frist again" to "Never underestimate the determination of Washington Democrats to try and snatch defeat from the jaws of victory." The conventional wisdom? Reid looked reasonable and diplomatic, while Frist looked inflexible and petulant. All over an offer that Reid knew Frist would be simultaneously foolish not to take, yet unable to accept, having painted himself inescapably into a corner with his "Constitution or the filibuster" rhetoric, not to mention his "Justice Sunday" antics.
That CW was validated a few days later, when Frist floated a "compromise" of his own, also designed for rejection: end the ability of Senators to stop nominations in committee, and allow 100 hours of debate on each nomination now pending, followed by a floor vote. Reid, noting that the objection was never about the length of the debate and calling Frist's proposal, "a big wet kiss to the far right," passed.
Which Nomination Will Trigger the Nuclear Option?
One week from today, almost to the hour, we should know how serious Frist is, as the Senate returns to its regular schedule. Currently, four judicial nominations are pending, leaving us guessing as to which one will trigger the nuclear option. The first and longest pending is that of William Myers, who cleared the committee on March 17th and was therefore expected to be used as the trigger. Joining Myers on April 14th, Thomas B. Griffith, and on April 21st, Priscilla Owen and Janice Rogers Brown.
Whether Frist's hesitation can be attributed to his lack of solid votes for his power grab, or whether he was simply waiting for a more "sympathetic" candidate to fight over is a matter of some speculation. Already there are indications that Republicans will, for some reason, attempt to fall back on their failed strategy of the last Congress:
Republicans want a resolution before a vacancy occurs on the Supreme Court because they worry that having to get support from 60 senators would affect who Bush picks for that seat. Chief Justice William Rehnquist, 80, is fighting thyroid cancer.
One judicial nominee, Idaho lawyer William Myers, already is waiting for a confirmation vote on the Senate floor.
But conservatives would rather see the final showdown come over Brown, Owen or U.S. Appeals Judge William Pryor, who was given a temporary appointment by Bush after he was blocked by Democrats.
Conservatives during the last Congress accused Democrats of acting out of racial, religious and gender prejudice in blocking Brown, Owen and Pryor. Brown is black, and Pryor is a Catholic.
Should Dems Fear "Shutdown" Backlash?
And so here we stand, waiting to find out if Frist has it in him to kick this thing off. When Senators return to Washington, expect to hear more from Republicans about how the nuclear option's name comes from the anticipated Democratic reaction - they'll tell you Dems plan to "shut down the government" in response. Arm yourselves for this "argument" now. It's easy. Just remember this: nothing could be further from the truth.
How so? Let me take you back to 1995 for a moment. The year is relevant for two reasons: one, it was the date of the infamous Gingrich-triggered government shutdown that Republicans are hoping you'll be reminded of when they tell you what Democrats are "threatening" to do, and; two, it was the year that Gingrich Republicans repeatedly whined, "Only in Washington."
"Only in Washington," we were lectured, "would a smaller increase be called a cut." Whether the issue was the Earned Income Tax Credit or school lunches, Republicans were, literally, reading from the same page on this point. "Only in Washington."
Well, "only in Washington" would Senate Democratic Leader Harry Reid's plan to respond to the Republican-triggered nuclear option by bringing a positive agenda of legislation to the floor be called a "shutdown."
Reid's plan, in fact, is the polar opposite of a shutdown. It utilizes a little-known Senate rule that allows bills to bypass the committee process and be placed directly on the Senate floor calendar. By tradition, the Senate Majority Leader controls the voting agenda, but only by tradition. And since the nuclear option is blowing that out of the water, why cling to the old ways?
Now, Rule XIV doesn't guarantee a floor vote on any of the bills placed on the calendar by Democrats. That's still subject to a vote. But that means Republicans will face those precious "up-or-down votes" on whether or not to consider bills on issues such as women's health care, veteran's benefits, fiscal responsibility, gas price relief, education, jobs, energy markets, corporate taxation, and the ever-popular "standing with our troops."
Eager as they'll be to tag the Democrats with the "obstructionist" label, and to tie their response to the use of the lawless nuclear option to Newt Gingrich's spectacular flameout in the 1995 government shutdown, it's just not gonna fly. In 1995, Americans taking their families out for a Sunday picnic in the National Park found locked gates and chains barring their way, the parks closed in a fit of Republican pique. Ten years later, it promises to be a different story:
SEN. DICK DURBIN: We're not going to shut down the Senate. We're not going to shut down the government. I can tell you we learned our lesson watching Newt Gingrich. That hapless tactic was terrible. It's not going to happen again. But I will tell you this. If they decide on the Republican side to break the rules in order to change the rules, then sadly we have no choice but to enforce the rules and live by them.
It will be a different Senate. Senators will be at their desks more, on the floor more, in session more. The key legislation for the defense of America and our troops and important appropriations bills will still pass, but the agenda of the Senate and the procedure of the Senate will change.
In 2005, Americans curious about the alleged "shutdown" of the Senate will be able to tune in to C-SPAN2 and see... more Senators at their desks, doing more talking and more voting on more issues than ever before. Only on the strange and distant Gingrich planet would that be considered a "shutdown."
I might also add that as the media pretends to be confused about the origin of the term "nuclear option," and in fact lets Frank Luntz edit their work by agreeing to swap it for the highly conclusory (and equally false) "constitutional option," let us hope they've not been so bamboozled they're fooled into buying the Republican logic that would brand the key ingredient in Rule XIV procedure, the "motion to proceed", a dilatory tactic. Motion to proceed. I think it's pretty clear what that's really about.
Only in Washington, indeed.
Remember, your best weapon in all of this is that ultimately, Republicans are the ones breaking the rules here. And by breaking, I mean shattering. Cheney intends to rule in Frist's favor despite the fact that the Senate Parliamentarian - normally the final arbiter of Senate rules and procedure - would find the maneuver out of order. The promised response, however, is not even close to the "shutdown" Republicans are trying to sell you. Instead, it's a literal application of the rules as written. No wonder Republican thugs like Frist and Cheney recoil in horror.