Senate Institutionalists: Here’s Why to Vote No on the Nuclear Option
Now that Senate Minority Leader Harry Reid (D-Nev.) has declared that negotiations are “over,” Senate Majority Leader Bill Frist (R-Tenn.) is preparing to detonate the “nuclear” option this week — a procedure that would allow a majority Senate vote to prohibit the kind of filibusters currently being employed by Democrats against a small number of appeals court nominees chosen by President Bush. Frist has not previously attempted to deploy the nuclear option, possibly because he has lacked the 50 necessary votes, although other GOP leaders, namely Sens. Mitch McConnell (Ky.) and George Allen (Va.), say that 51 votes are lined up in favor of the proposal.
Three Republican Senators, Lincoln Chafee (R.I.), John McCain (Ariz.) and Olympia Snowe (Maine), have clearly indicated that they will vote against the nuclear option. Numerous GOP Senators have not stated publicly how they will vote, and a number have publicly and privately expressed serious reservations about applying the measure.
Virtually all of these Senators are “institutionalists” — Members who care most about the Senate and its venerated traditions. They include Sens. Susan Collins (Maine), Mike DeWine (Ohio), Chuck Hagel (Neb.), Dick Lugar (Ind.), Arlen Specter (Pa.), George Voinovich (Ohio) and John Warner (Va.).
These uncommitted Senators have reasons both numerous and persuasive to vote against the triggering of the nuclear option. First and foremost, a vote in favor would violate the Senate’s own current Rule 22, which requires a two-thirds vote to change an existing Senate rule. Second, and closely related to the venerated notion that Senators play by the rules, is the issue of fundamental fairness.
Third, the option’s successful use promises to modify the Senate’s nature as a great deliberative body over the short term, and perhaps forever. For example, in the near term, Senatorial courtesy will suffer as procedures, most prominently unanimous consent, are honored only rarely. And in the future, the Senate may be tempted to extend the prohibition on filibusters to include legislation, notwithstanding current Republican disavowals.
Moreover, when a majority of Senators assumes the power to define the Senate’s rules, that action will seriously erode the power of an individual Member’s vote, perspectives and voice, as well as that of the state which the lawmaker represents.
These changes will substantially undermine the ability of a minority to participate in deliberations conducted by the Senate. The modifications will also dilute the Senate’s power vis-à-vis the executive in the critical area of life-tenured judicial appointments. For instance, the nuclear option essentially frees the president to appoint whomever he chooses, as long as the nominee can secure 50 votes. This means that the nuclear alternative will erode the leverage of the Senate to give its advice and consent to the president’s nominees.
Before Senators vote on the nuclear option, they must answer several important questions. They must consider whether it is actually worth sacrificing the world’s greatest deliberative body and the system of checks and balances for several ill-advised purposes.
One factor is the presidential aspirations of one, or several, Senators, including the Majority Leader. A second is the vision by Karl Rove, President Bush’s adviser, of Republican Party domination for the 21st century.
Third is the appointment of a handful of appellate court nominees who are outside the legal mainstream. A concomitant issue is the appointment of a few Supreme Court nominees. Republican Senators ought to remember that 10 of 13 federal appeals courts now have Republican-appointed majorities. By the second Bush term’s conclusion, the number of appellate courts with GOP majorities may swell to 12 and these majorities will increase on specific courts. Republicans should correspondingly remember that GOP chief executives appointed seven of nine present Supreme Court Justices. Republicans, therefore, already exercise substantial control over the battlefield, federal court dominance, on which they would unleash the nuclear option.
In sum, GOP Senators must answer whether the immediate political advantages of detonating the nuclear option eclipse the short- and long-term detriments to the Senate and the Republic. The truly conservative position would be to maintain the status quo and venerated Senate traditions. Those traditions include respecting the minority’s views, honoring individual Senators’ perspectives, allowing extended debate, and seeking reasonable resolution, especially through compromise.
In the end, the nuclear option vote, which Frist seems determined to force, will severely test how much the Republican “institutionalists” actually care about the Senate and its traditions. If these Members vote for the option out of partisan loyalty, despite serious reservations, they will jeopardize the very essence of the institution they hold so dear.
Carl Tobias is the Williams Professor at the University of Richmond School of Law.