Nuclear option

The much discussed “nuclear option” has nothing to do with an atomic weapon. The Republicans, as the majority party in the U.S. Senate at present, hold the high ground in this debate. They have no intention of “nuking” the Democrats. Although, listening to the screams of anguish on the Democrat side of the aisle, one would think it so.
The nuclear option is a rarely used parliamentary maneuver that is available to the Republican majority. The use of the nuclear option by the Republicans will remove an obstacle held by the Democrat minority that permits the Democrats to filibuster appointments of the President to the U.S. Courts of Appeal and Supreme Court, thereby denying the nominee an up or down vote.
A vote for cloture, cutting off debate, requires a super majority of 60 votes. At this time, the Republicans don’t have the necessary 60 votes to bring about cloture.
Only in recent times has a presidential appointment to a high U.S. court been subject to a filibuster. The use of the filibuster has effectively denied President Bush the right of appointments to the U.S. Courts of Appeals and would interfere with his appointment of justices to the Supreme Court.
A thorough reading of the U.S. Constitution fails to reveal any section or paragraph of any Article requiring a super vote of 60 members of the U.S. Senate to approve the appointment of any presidential cabinet member, any ambassador or any member of the U.S. Courts of Appeals or the U.S. Supreme Court.
The “advice and consent rule” spelled out in Article II, Section 2, Paragraph 2 of the U.S. Constitution reads as follows: “He shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, consuls, judges of the Supreme Court, and all other officers of the United States...” No mention is made of any percentage or number of votes required for these appointments.
Present U.S. constitutional law requires presidential appointees to be confirmed by the U.S. Senate by a simple majority vote: 51 out of 100 U.S. senators.
The U.S. Constitution is very specific in identifying items that require a two-thirds majority vote. There are seven so specified.
Most of the current discussions regarding the nuclear option, particularly those advanced by the mass media, range from confusing to misleading to blatant lies.
The most authoritative explanations of the history surrounding the nuclear option are found in a Confirmation Watch (CFIF.org) letter of May 2, 2005, which reads:
“It has long been a principle of Anglo-American Constitutional law that a previous legislature cannot bind a subsequent legislature. Indeed, the maxim all the way back to Sir William Blackstone, who cited Cicero in his Commentaries on the Laws of England for the proposition that ‘Acts of Parliament derogatory from the power of subsequent parliaments bind not … because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: It acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind the present parliament.’”
The letter continues: “The U.S. Supreme Court, likewise, has held that legislative entrenchment constitutes an unconstitutional exercise of power in a long line of cases dating all the way back to the mid-19th Century. The conclusion that emerges is clear: Laws and rules that restrict changes by future legislatures are unconstitutional.”
Simply stated, any rule passed by a previous legislative body may be declared unconstitutional, if deemed so by a current legislative body. A simple majority vote is all that is necessary to change the rule.
The exercise of the nuclear option could take place something like this:
A motion is directed to the chair, occupied on this particular occasion by Vice President Richard Cheney, president of the U.S. Senate. The motion declaring that the Senate rule requiring “60 votes for cloture,” is unconstitutional would be offered by a Republication senator, no doubt Sen. Bill Frist of Tennessee, who would request a ruling from the chair. This particular motion cannot be debated.
After considering the motion, Vice President Cheney will rule the motion is valid and that the rule requiring 60 votes for cloture is unconstitutional.
And for the present, at least, future presidential nominations to U.S. courts and ambassadorships will require a simple majority vote for approval.
Confirmation Watch Letter concludes: “With a Senate minority now obstructing up or down floor votes on several judicial nominations … the time has certainly come for the Senate majority to seriously consider re-exercising the ‘nuclear option.’”
The decision must be made soon, or the moment may be lost.