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Robert Bennett: 'Nuclear option' ends unwritten rules

Published: Monday, Dec. 2 2013 12:00 a.m. MST

Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., left, stands up to leave in frustration as Republican members of the panel did not show up for an executive meeting to consider a dozen of President Barack Obama’s judicial nominations, Thursday, Nov. 21, 2013. The Senate is nearing a potential showdown on curbing the power that the Republican minority has to block President Barack Obama's nominations, as majority Democrats edge toward forcing a rewrite of filibuster rules through the chamber require only 51 votes to end filibusters and other delaying tactics.

J. Scott Applewhite, Associated Press

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There has been uproar in the Senate over Sen. Harry Reid, D-Nevada, using the “nuclear option” to make changes in the Senate rules regarding filibusters. People ask me, “What’s that all about?” A full answer requires some background.

A senator has the right to unlimited speech, which means that as long as he and his friends keep talking they can prevent a vote. That right cannot be taken away unless 60 other senators vote to invoke “cloture,” parliamentary language for “time’s up.” Accordingly, 41 senators can block action on any debatable motion. That’s the rule.

However, when I got to the Senate I discovered that Senate precedents trump the rules; as in, “The rule may say you can do that, but we never have.” One such precedent was that a filibuster was never used to block votes on judicial nominations. That’s why Clarence Thomas, the most controversial appointee to the Supreme Court in recent memory, was able to be confirmed with 52 votes.

I was made aware of this when President Bill Clinton sent up a judicial nominee Republicans opposed but did not have 51 votes to defeat. A few of the newer senators said, “We’ve got more than 41. Let’s filibuster him.” Sen. Orrin Hatch, R-Utah, then chairman of the Judiciary Committee, said, “Absolutely not. If we did that, they could filibuster one of ours after we get the presidency back.” Trent Lott, the Majority Leader agreed. “We just don’t do that.” So we didn’t.

Things changed a few years later when George W. Bush sent up the name of Miguel Estrada to be appointed to the D.C. Circuit Court. It was widely assumed that Bush would send us his name again when there was a Supreme Court vacancy because Estrada was very smart — the American Bar Association rated him “well qualified” — very conservative and Hispanic, which would help Republicans with a key voting bloc.

The Democrats decided that the only way they could keep Estrada off the high court would be to shoot him down at the Circuit Court level, where few people were paying attention. They did not want to be found standing in the way of the nation’s first Hispanic justice, so they broke the precedent about filibustering judges and killed his nomination.

Republicans were furious. Majority Leader Bill Frist looked for a way to change the rules with only 51 votes, found one, and openly talked about using it. Democrats denounced the tactic as an outrageous use of majority power, some Republicans agreed, and Trent Lott predicted, “If you do that, this place will go nuclear,” which is how the “nuclear option” got its name. Frist abandoned the idea.

Now with Obama as president, Republicans have embraced the Estrada precedent and used filibusters to block some of his judicial nominees. In response, Reid has used the nuclear option to change the rules so they can’t do it anymore. The irony is obvious; Democrats are defending an action they once said they would “go nuclear” to prevent, and Republicans are protesting a rule change they once said they would “go nuclear” to get.

Of course, both sides insist that the circumstances are different now. Republicans point out that Reid’s action applies to executive as well as judicial branch nominees. Democrats claim that Republicans were planning to use the nuclear option themselves once they returned to power.

Perhaps, but this is still an amazing turn of events. To me, it shows that Senate precedents which were instrumental in keeping bitter partisanship under control are pretty much gone, which is not a good thing.

Robert Bennett, former U.S. senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah's Hinckley Institute of Politics.

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