My friend Eugene Oregon has discovered the latest disturbing twist in the GOP drive to stop Dems from blocking Bush’s worst judicial nominees. It’s not a new scheme or clever legal strategy — it’s a name change.
Human Events, one of the nation’s most conservative publications, describes the benefits of what they call the “constitutional option.”
How would the “constitutional option” unfold? The next time Senate Democrats balk over a principled Bush nominee, Frist would attempt to resolve the impasse. Failing that, he would ask the presiding officer of the Senate to rule on the appropriateness of applying the 60-vote supermajority requirement to judicial nominees. The presiding officer is a senator who oversees Senate floor debate and is empowered to interpret Senate rules and establish binding Senate precedents. Given the gravity of this ruling, expect to see the Senate president pro tem, Alaska Republican Ted Stevens, occupy the chair when Frist issues his challenge to the 60-vote requirement.
Next, the presiding officer would rule that using the filibuster in this narrow set of circumstances is inappropriate, perhaps noting (but only in passing) the constitutional concerns that arise when a Senate minority effectively eviscerates the “advice and consent” requirement with respect to court nominees. The ruling would lower the confirmation threshold from 60 to 51 votes. On cue, a senior Democrat, either the new minority leader, Nevada’s Harry Reid, or perhaps Senate procedural expert Robert Byrd of West Virginia, would appeal the ruling of the chair. The ensuing floor vote to implement the presiding officer’s ruling, which would unfold largely along party lines, requires only a simple majority.
So what, exactly, is the difference between the long-rumored “nuclear option” and Human Events’ “constitutional option”? That’s just it; there is no difference. Conservatives probably no longer like the way “nuclear” has a negative connotation — I can’t imagine why — and so they’re trying to use a rhetorical trick to make the same scheme sound better. It’s no different than calling the estate tax the “death” tax.
Keep in mind, of course, that it was the Republicans who came up with the idea of calling this scheme the “nuclear option” in the first place. As Eugene pointed out, the Washington Times (like Human Events, except published daily and run by a crazed Korean cult leader) reported in May 2003:
Republicans could immediately break the current filibusters against two of President Bush’s judicial nominees with a rarely used parliamentary procedure that would confirm them through a simple majority vote, according to a plan under consideration by Senate Republicans.
The tactic would be so drastic in the usually congenial Senate that Republicans refer to it as their “nuclear option.”
But now that option, which is clearly under very serious consideration, apparently needs a new name. I guess they could have gone with the “mom, baseball, and apple pie” option, but “constitutional” is easier to say.