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May 20, 2005
The Byrd Option Is About To Take Wing

Bill Frist will take another step towards invoking the Byrd Option of getting a ruling that filibusters are out of order on judicial nominees this morning, when he introduces a motion for cloture on the confirmation debate for Texas Supreme Court Justice Priscilla Owen:

This morning, Senate Majority Leader Bill Frist will take an official step to proceed toward a vote on Owen's nomination, starting the clock ticking toward a showdown over whether Democrats will retain their right to block judicial nominees with the filibuster.

Shortly after the Senate convenes this morning, Frist, R-Tenn., will file a cloture petition, which requires the approval of 60 of 100 senators, to end debate on Owen's nomination. Last session, Democrats blocked Owen and nine other appellate court nominees. He has renominated seven of them this year.

Under Senate rules that petition must "ripen" for two days while the Senate is in session -- today and Monday -- before a vote.

If five Democrats do not join with the Senate's 55 Republicans to give Frist the 60 votes he needs to proceed to an up-or-down vote for Owen, Frist plans to carry through his threat to lower the threshold needed to cut off judicial filibusters from 60 to 51. That vote -- known alternately as the 'nuclear' or 'constitutional' option -- is likely to occur on Tuesday.

That timing should not surprise anyone. On Tuesdays, the Vice President traditionally sits in and performs his duties as President of the Senate, meaning that Dick Cheney will make the interpretation of the rule that Frist's motion challenges. That gives the Republicans a tie-breaking vote, if necessary, in order to carry the interpretation into precedent. The description by the Post-Gazette is somewhat incorrect in this regard, in that what Frist's motion does isn't to lower the vote bar for filibusters but make filibusters on judicial confirmations out of order entirely.

This means two things. Frist now has the votes to carry this motion, and he has given up hope on a compromise that will satisfy the need for up-or-down votes on all nominees who make it out of committee. Reid knows this, too, which is why he gave the Senate a taste of the obstructionism he has used as an extortionate threat against the Byrd Option. By Tuesday afternoon, the debate on Owen will likely come to a screeching halt and she will be confirmed, followed quickly by the rest of the embargoed nominees.

Expect to hear a lot about compromises over the weekend, though. Don't be surprised on Tuesday if the cloture motion passes for Owen and then again later for Brown. The Democrats really only have time as their ally if they can put off Frist's motion -- and the only way for them to do that now is to start confirming Bush's nominees. They can save the filibuster on judicial nominations now only by not using it, a position that their earlier indiscriminate use has forced onto them.

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Posted by Ed Morrissey at May 20, 2005 7:47 AM

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» Cloture Motion introduced from
Which means that the actual vote will happen on Tuesday. CQ speculates that the Democrats may allow votes, to keep their filibuster option alive if needed. link Expect to hear a lot about compromises over the weekend, though. Don't be surprised on T... [Read More]

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