'Nuclear option' a divisive issue

By Celeste Calvitto, Journal Staff Writer | Monday, May 09, 2005

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As the U.S. Senate returns to Washington after a weeklong recess, the hot topic is the so-called "nuclear option." It has nothing to do with weapons of mass destruction - at least in the literal sense.

Figuratively, though, both Republicans and Democrats believe that a potential showdown over the use of the filibuster to prevent confirmation votes on some of President Bush's appellate court nominees could have a near-lethal effect on Senate legislative business.

"The nuclear option language is a play on the weapon of last resort and the fallout that may follow," Bob Burns, head of the political science department at South Dakota State University, said Friday.

Senate Majority Leader Bill Frist, R-Tenn., and Senate Minority Leader Harry Reid, D-Nev., failed to reach an agreement on the issue before the recess.

Democrats say they may try to block some of Bush's nominees through the filibuster. It takes a three-fifths majority, or 60 votes, to end a filibuster. A simple majority - 51 votes - is required for confirmations. Republicans say they may seek a ruling from Vice President Dick Cheney, in his role as president of the Senate, that the filibuster of judicial nominations is unconstitutional - which would amount to a change in Senate rules.

Burns outlined a possible scenario for the process.

"The way it could work is, a Republican senator will ask the presiding officer of the Senate, Vice President Cheney, whether a vote on judicial nominees is subject to a filibuster," Burns said. "Cheney will respond that it is not subject to a filibuster, but to a simple majority," Burns said. "His ruling will be challenged by a Democrat, but it only takes a simple majority to uphold the ruling of the chair. If the Senate splits 50-50, Cheney casts the tie-breaking vote, as he has already said he would."

South Dakota's senators, Democrat Tim Johnson and Republican John Thune, are representative of the split on the issue.

"Like most Americans, I believe there is too much division and partisanship today and that the rhetoric has grown far too bitter," Johnson said. "South Dakotans recognize neither party has all the answers. We are governed best when we come together in the political center. This is precisely why I believe it is essential for the Senate to retain the 60-vote rule, because it requires both political parties to have at least some modicum of bipartisanship in the proposals that they pursue."

Johnson added: "It is my hope that cooler heads will prevail, that the historic rules of the Senate will prevail, and that the Senate will continue to play the incredibly important and unique role that it has throughout 200 years of American history. We must protect the constitutional mandate of checks and balances in basic fairness for the American people."

Democracy in Action, a local women's organization that seeks to inform voters on progressive issues, held a rally recently outside Thune's Rapid City office to protest the potential change in Senate rules.

"If they push the button on the nuclear option, it could change the nature of the Senate. It is a cooling off place; it was never meant to be a place where the minority wouldn't have a voice," Sue Simmons, a member of Democracy in Action, said. "When it takes 60 votes to shut off debate, that means both parties have to seek compromise and moderation, and I think that's what the American public wants."

In the letter delivered to Thune's office, the group said: "Judges are, at many levels of the U.S. judiciary, appointed for life. We feel that, in order to populate the judiciary with men and women whose opinions stray neither too far to the left or to the right, the minority party - whoever it happens to be - should be granted not only the right to extend the debate, but to block by filibuster those nominees which they feel are unsuitable for the bench."

"I appreciate this perspective and welcome their input into the debate," Thune said. "To me, I am convinced that constitutionally, these nominees deserve an up or down vote."

Thune said that the philosophy of some of the nominees is at the root of the Democrats' actions.

"If you pull the curtains back, what this is about is that these judges hold conservative views," Thune said. "It is a political litmus test they have erected. ... It used to be that when the American Bar Association said you were qualified, that was the gold standard."

He said nominees are being opposed, in part, because "the appellate courts are the farm team for the Supreme Court."

"The broader issue here is that the Democrats want to erect a supermajority threshold for Supreme Court nominees," Thune said.

Thune said that two of the more controversial appellate-court nominees - Priscilla Owen of Texas and Janice Brown of California - "are highly qualified, have broad support from their respective states and have good records as judges, so it really does come down to what the Democrats say is judicial philosophy."

"They are being painted as having views outside the mainstream," Thune said. "Judge Brown received 76 percent of a retention vote, and California isn't exactly a conservative bastion."

Thune said people believe "that the Republicans are trying to destroy the tradition of filibusters and end minority dissent in the Senate. ... That doesn't hold water. It has nothing to do with the legislative filibuster; it is the narrow issue of judicial nominees.

"I see this issue purely and simply as a matter of fairness," Thune said. "The people of South Dakota have an instinctive sense of fairness, and when good people put their names forward, they deserve consideration."

Contact Celeste Calvitto at 394-8438 or celeste.calvitto@rapidcityjournal.com