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An Honest Debate Over the Nuclear Option


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March 8, 2005

An Honest Debate Over the Nuclear Option

By Ed Koch

Senate Majority leader Bill Frist is threatening to apply the so-called “nuclear option” to debates and filibusters on judicial nominees. This option would change Senate rules by allowing, at a certain point in debate, a simple majority vote to cut off debate on the confirmation of judicial nominees. The existing rule now requires a 60 percent majority members to end debate.

According to the Associated Press, Frist “has proposed reducing the number of senators needed to force a vote on a judicial nominee on a sliding scale. The number needed would drop by three votes after each successive cloture [or debate ending] roll call until only 51 votes, or a simple majority, would be needed.” A similar proposal was made by Democratic Senators Joe Lieberman and Tom Harkin in 1995. Over the years, both Democrats and Republicans have exercised the right to unlimited debate, using the filibuster to prevent an up or down vote on matters before the Senate. Sometimes those who engaged in a filibuster in opposition to a particular piece of legislation were in opposite parties.

In the 1950s and ‘60s, filibusters were primarily the weapon of Southern Democrats seeking to prevent passage of civil rights legislation. These "Dixiecrats" were determined to protect the Jim Crow laws that preserved racial segregation and prevented blacks from exercising their right to vote. Also subject to "Dixiecrat" filibuster was the effort to make lynching a federal crime. The tyranny of the Southern Democrats largely came to an end during the presidency of Lyndon B. Johnson, who used his enormous charm and power to appeal to the common sense and patriotism of Southern Congressmen and Senators.

In the old days, even a single Senator could hold the floor indefinitely, effectively blocking legislation. Today the rules allow 60 Senators to vote to end debate and filibusters, and allow the Senate to vote. In a country which has a strong tradition of majority rule, is it truly democratic to require a super majority to end filibusters?

Should the permissible goal of filibuster be to force the President to withdraw a candidate or a piece of legislation from consideration? Or, should it be to permit the opponents of a judicial candidate or of pending legislation adequate time to influence their colleagues’ mindset and to rally public opinion. I think it should be the latter.

A New York Times’ editorial of March 6, 2005 supported unlimited debate and the prevention of a final vote at the end of extended debate. The Times warned, “For them [the majority], the value of confirming a few extreme nominees may be outweighed by the lasting damage to the Senate. Besides, majorities are temporary, and they may want to filibuster one day.”

The Times surely did not defend outrageous filibusters by reactionary Southern Senators. Why are they defending the filibusters of liberals and progressives, primarily Northern senators?

If we want to change governmental procedures and require supermajorities to confirm judicial nominees or pass legislation, let us be honest and change the rules of the United States Senate to accomplish that goal. I doubt that The Times would support such a change in our governmental process.

There are nominees for the federal bench and the U.S. Supreme Court, who are not the best for the job, intellectually or ideologically. But fitness, especially ideological fitness, often depends on whose ox is being gored. Senators have an important role under the Constitution’s mandate to vote on the judicial nominee and provide their advice and consent to the President. The Constitution does not give them the right to frustrate the President by preventing a vote. If positions were reversed and the Republicans were currently frustrating a Democratic administration headed by John Kerry, on legislation and judicial nominees, would The Times be demanding that the Republican minority have an unlimited right to frustrate the newly-elected Democratic President via filibuster?

The Republicans, if they continue down the road of wrecking the greatest legacy of the FDR New Deal administration -- Social Security -- will be a Senate minority party in 2006. When and if that occurs, the Democrats will seek to pass legislation and appoint federal judges based on their new electoral majority. Will The Times then appeal to the Democrats' sense of fairness and ask them to continue the filibuster rule requiring 60 votes to end debate? I doubt it.

Ed Koch is the former Mayor of New York


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In all actuality, it should be refered to as the Constitutional option. The Nuclear Option has a negative connotation to it.

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