The “Nuclear Option”

The “Nuclear Option”
Vol: 44 Issue: 25 Wednesday, May 25, 2005

Fourteen US Senators, seven moderate Republicans and seven Democrats, reached a last-minute compromise that averted the application of the so-called ‘nuclear option’ by the Republican-controlled majority.

That’s the way that most news services reported the deal. Incidentally, it was also the first time I ever heard the word ‘moderate’ applied by the mainstream media to describe a Republican senator.

The San Jose Mercury-News reported the story under the tongue-in-cheek headline; “High-Minded Centrists Discovered in Senate.”

The Mercury-News story contained, to give it credit, an honest effort on the part of the paper to balance the story, but one can’t describe color if one is blind to begin with.

The report began by repeating the Left’s revision of Senate history:

“Seven moderate Democrats and seven moderate Republicans have backed the Senate away from the “nuclear” brink with a deal on appeals court judges nominated by President Bush. Three will be approved and two will be rejected by filibuster.

The deal scuttles a plan by the Republican leadership in the Senate to eliminate filibusters on judicial candidates. The filibuster is a longstanding practice in the Senate that enables a minority of 41 senators to delay a vote indefinitely.”

“A long-standing practice” is a bit of a stretch when applying the history of the filibuster to judicial nominees.

The only time in American history that the filibuster has been successfully used to block a judicial nominee was the 1968 filibuster blocking President Lyndon Johnson’s appointment of Associate Justice Abe Fortas as the Chief Justice of the Supreme Court.

Abe Fortas was, at the time, a close advisor to President Johnson. In those days, a justice was paid $39,500. Fortas was able to bring in extra cash through a ‘foundation’ set up by Wolfson. Wolfson paid Fortas a ‘fee’ amounting to $20,000 a year, for which Fortas was required to attend a single annual meeting.

In return, Fortas lobbied the administration on behalf of Wolfson’s two companies, both of which were under federal investigation. Ultimately, Johnson withdrew his nomination of Fortas, and Fortas later resigned to avoid impeachment.

To read the liberal press, like the Washington Post or the LA Times, Fortas is an example of the GOP using a filibuster to block a judicial nominee.

The filibuster that blocked Fortas’ nomination was bi-partisan. His nomination was blocked by twenty-four Republicans and nineteen Democrats. Despite Fortas’ credentials as a reliably liberal Democrat, back then, some Democrats still put what was best for America ahead of what was best for liberal America.

Senate Democrats say 12 nominations have been filibustered in the Senate to 2000, with Fortas being the only nomination that wasn’t subsequently confirmed.

No matter how you spin it, that is one successful judicial filibuster, 37 years ago, out of more than 200 years of Senate history.

Since coming to office, ten of Bush’s 45 judicial appointees (more than 20%) have been denied by filibuster, requiring a unconstitutional super majority vote.

The Democrats called the threatened closing of the filibuster option by the GOP “an assault on the very essence of the Senate, a body distinguished by its insistence on tradition and unwritten rules.”

Notes columnist Charles Krauthammer; “This claim is a comical inversion of the facts. One of the great traditions, customs and unwritten rules of the Senate is that you do not filibuster judicial nominees. You certainly do not filibuster judicial nominees who would otherwise win an up-or-down vote. You surely do not filibuster judicial nominees in a systematic campaign to deny a president and a majority of the Senate their choice of judges. That is historically unprecedented.”


The word ‘filibuster’ comes from a Dutch word meaning, ‘pirate’. A ‘filibuster’ is a parliamentary procedure that the minority can use to block sending a nominee to the floor for a vote. A filibuster deadlock requires a 60% majority vote to overcome.

A filibuster is one of the few times in which a super-majority is required by the Senate. Barring the invocation of a filibuster, all that is required for judicial nominees is a simple majority of 51-49.

In the event of a tie, the Vice President can cast a tie-breaking vote, making a 51-50 majority vote a possibility.

The alleged ‘nuclear option’ that was avoided by the fourteen ‘centrist’ senators would have resulted in a Senate rules change that would eliminate the need for a super-majority and would return to the Constitutionally-mandated simple majority.

The reason that the Republicans call it the ‘Constitutional option’ while the Democrats (and the mainstream press) prefer the term ‘nuclear option’ is because if the Senate majority exercises that option, the Democrats pledged to shut down the government.

The seven so-called ‘moderate’ Republicans broke ranks with their party to join with the seven ‘moderate’ Democrats (who did not) to come up with the ‘compromise’ deal. (The exact same offer was made last week by Senate Minority Leader Harry Reid and was rejected by the Senate majority as ‘tepid’.)

The ‘compromise’ worked out means that the Democrats won’t block three of Bush’s nominations (that they previously said were unacceptably biased), in exchange for blocking two others.

In reality, it was all arbitrary procedure — there were no heart-felt moral convictions at work here. The deal proves that the Dems weren’t blocking the now-acceptable justices out of conviction, but for the express purpose of obstructing the administration.

What was unacceptable to the Democrats was the risk of losing the ability to govern from the minority, not the suitability of the justices themselves.

The four-year-long fight was instead about Senate Democrats finding creative new ways to continue to wield the power the voters took away from them in 2000.

Whether justices Owens, Pryor or Brown will be good for the country or not is evidently irrelevant.

Priscilla Owens’ nomination was filibustered for four years. Others have also waited years for the up or down vote denied them by the Senate Democrats.

If they were bad appointments before, what about the nominees has changed to make them acceptable? If they are now suddenly acceptable, then why block them in the first place?

What about this deal suddenly makes bad nominees good, or good nominees bad? The answer is fairly obvious. What is good for the country is secondary to what is good for the Democrats — which appears to be the only consideration that matters.

“But He, knowing their thoughts, said unto them, Every kingdom divided against itself is brought to desolation; and a house divided against a house falleth.” (Luke 11:17)

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About Pete Garcia

Christian, father, husband, veteran, pilot, and sinner saved by grace. I am a firm believer in, and follower of Jesus Christ. I am Pre-Trib, Dispensational, and Non-Denominational (but I lean Southern Baptist).

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