Nuclear Option 1

Human Events has a nice explanation of how democracy may soon return to the senate:

You've heard of the "nuclear option." But how about the "constitutional option?"

The phrase relates to Senate Majority Leader Bill Frist's reported decision to force through a long-overdue change in Senate rules governing the confirmation of judicial nominees. Frustrated by the Democrats' unprecedented use of procedural tactics to torpedo President Bush's nominees for the federal appeals courts, Frist and his Senate colleagues have allegedly decided to deploy what conservative jurists describe as the "constitutional option" during the next confrontation over a judicial nomination.

The "constitutional option" refers to a Senate rules change that would guarantee something most legal experts always took for granted--that even the most controversial nominee will, at the end of the day, receive an up-or-down vote on the Senate floor. During Bush's first term, outgoing Senate Minority Leader Tom Daschle abandoned more than two centuries of Senate tradition and established the Daschle Precedent of denying nominees a floor vote through the use of the filibuster, a potent procedural tool that effectively raises the number of votes required for confirmation from 51 to 60. Thus, Bush's nomination of an esteemed jurist such as Miguel Estrada to the D.C. Court of Appeals failed even though Estrada consistently won the support of 53 senators during Republican efforts to break the Daschle filibuster.

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.

It is worth noting that a number of seasoned conservatives with long Washington memories object to this strategy. They recall the days when liberals controlled both the White House and Capitol Hill. Then, the only thing standing between the American people and a surge of big-government legislation was a determined minority of conservative senators willing to use the filibuster on behalf of core conservative principles. These conservatives worry that one day Blue America liberals will control the levers of power and will use this precedent against conservatives. But those who support the change anticipate that it would be extraordinarily narrow in scope, applying only to nominations to the federal bench and specifically excluding other presidential nominations and bills on the legislative calendar.