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May 18, 2005
The Byrd Option Starts Today

With all sides acknowledging that a deal cannot be reached, the GOP will move Bush's judicial nominees for confirmation today, starting with Priscilla Owen and Janice Rogers Brown. This sets the stage -- finally -- for resolution of the unprecedented obstructionism that has kept the Senate from voting on almost a third of Bush's nominations to the appellate courts, the worst Senate record on nominations in recent history:

Republicans, led by Majority Leader Bill Frist, spent yesterday accusing Democrats of using "unprecedented" tactics to block nominees who have majority support in the Senate. They said the minority party is shirking its constitutional responsibility to provide "advice and consent" on judicial nominees by preventing final votes on them.

Democrats, led by Minority Leader Harry Reid, argued that by filibustering the nominees -- whom they describe as conservative judicial activists far outside the mainstream -- the Senate is officially registering its refusal to give consent.

"Well, it appears that we really have reached a moment of truth in the United States Senate this week," said Sen. Joe Lieberman, a Connecticut Democrat who said he'd still like to find a compromise.

"The announcement by Senator Frist and Senator Reid [Monday] afternoon that their discussions over avoiding the so-called nuclear option have failed present us now with this moment of truth and a challenge for every member of the United States Senate," he said.

As the Washington Post describes it, the script will likely follow this narrative. Frist will move the nominations for debate, and probably allow the debate on Owen and/or Brown to continue all week long, ensuring that "freedom of speech", as Robert Byrd has publicly fretted, does not become an issue. After each Senator has had a chance to weigh in on the debate -- and that will probably be the key for Frist -- he will move for cloture, and lose the vote due to the Democrat filibuster.

After losing on cloture, Frist will appeal to the chair, claiming that the filibuster rule does not apply to judicial nominations as that is a Constitutional duty of the Senate and cannot be blocked by a minority. The chair, who will most likely be Vice President Dick Cheney in his role as President of the Senate, will agree with the interpretation and rule that cloture does not apply. The Democrats will object to this ruling and attempt to overrule it, but the interpretation will only need a majority for enforcement. At that point, a precedent will have been set, and cloture will be out of order on any subsequent judicial nominations.

Interestingly, the Post article makes specific mention of the historical precedent behind Frist's strategy, something that the GOP has repeatedly pointed out but that the media have been loath to report:

A virtual script for what could happen next is included in an article published last fall in the Harvard Journal of Law & Public Policy by Martin B. Gold, a partner at Covington & Burling who is a former floor adviser to Frist, and Dimple Gupta, a former Justice Department lawyer who was hired in March by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.).

In making their case, the authors pointed to the ways that Sen. Robert C. Byrd (D-W.Va.) used similar tactics to lower requirements for certain legislative actions from a supermajority to a simple majority when he served twice as majority leader, in the 1970s and 1980s.

"The reason for calling it 'the constitutional option' is that it's an exercise of the Senate's constitutional power of self-governance," Gold said. "The Senate sets precedents all the time, and it sets them by majority vote."

But what happens at the end of the Byrd Option, if successful? My guess is that the Democrats walk out on all confirmation debates involving nominees they dislike, in protest. The earlier threats to shut down the Senate made by Harry Reid have long since been dropped, as a number of the Democratic caucuses must have had nightmares about a repeat of 1995 and Newt Gingrich's miscalculation in doing the same thing to Bill Clinton.

Reid, by the way, doesn't have the votes to stop it, although it had looked earlier like he thought he did. For the past week he has stopped predicting victory and instead, when asked, has issued plaintive statements like this:

Mr. Reid said yesterday that "we feel good," but "we certainly are not about to declare victory. ... It's going to take some Republicans of good will to be courageous and break from their leadership."

After a season of fumbling the ball, the GOP finally started pushing the issue hard this past month, driven by its base to get moving. While a majority of voters have still not become comfortable with the rule change, usually due to the way the question gets asked, polling shows that a majority also objects to the Democrats using the filibuster to block confirmation on nominees that reach the Senate floor. Even the moderate Senators will understand that allowing the Democrats to continue that by opposing the rule change carries significant risk in their next election. Moreover, with Reid's increasingly desperate and personal attacks on the candidates and his cynical offers to confirm a few of the "bad people" anyway, he has raised the ire of those who may have felt sympathy for his position.

By next week, the Byrd option will be a reality, and the Senate will return to its 200+ year tradition of majority rule on judicial nominations. The unprecedented attempt to usurp the role of the Executive in making judicial nominations will be finished.

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Posted by Ed Morrissey at May 18, 2005 5:41 AM

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» Why Polls About Filibusters Are Worthless from Patterico's Pontifications
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