Barring a last-minute compromise, here’s what’s going to happen tomorrow on the nuclear option fight: Bill Frist will try to end debate on Priscilla Owen’s judicial nomination. If there are fewer than 60 votes to do so (and there will be), Frist will call a point of order arguing that the filibuster is unconstitutional. The presiding officer of the Senate, Dick Cheney, will agree. Dems will protest, prompting Frist to call for a vote to table the Dems’ appeal. If Dems come up short of 51 votes, the Senate will give Owen an up-or-down vote and a new Senate precedent will be set forevermore.
As a rhetorical shorthand, I, among others, have called the nuclear “changing the Senate rules.” It’s not a particularly accurate description. The Senate already has a mechanism to change the rules, but Frist & Co. would need 67 votes to do so. This is something else entirely.
Indeed, as Mark Kleiman explained very well, the nuclear option isn’t about changing the rules; it’s about cheating.
Never before in the history of the Republic has a Vice-President used the power of the chair to rewrite the rules of the Senate, perhaps because never before has there been a Senate majority so partisan as to value party advantage over institutional prerogative. In making that ruling, Vice-President Cheney will be acting unconstitutionally. He will be blatantly violating his oath of office, as will every Senator who votes to sustain his action.
Changing the rules in the middle of the game is unfair. A party capable of Oakeshottian self-restraint will do so only when absolutely necessary. But if it’s done within the rules themselves, it can’t be called cheating.
Violating the rules so your side wins, however, is exactly that: cheating. In this case, it’s law-breaking and Constitution-busting, too. Every true republican will oppose it.
Quite right. Frist & Co., it’s been said, want to change the rules in the middle of the game. But it’s much more than that. They’re changing the rules about changing the rules, all the while ignoring the law, the Senate process, and Senate precedent.