McCain’s 14: A Small Group of Moderates Saves the Senate for Now

On May 24, 2005, Senate negotiators came to a last-minute agreement on judicial nominations, preventing what many have called "the nuclear option" because of its potential to symbolically blow up the Senate.

What is the nuclear option?

Republicans wanted to get rid of a procedural blockade called the judicial filibuster -- a tool that the minority uses to stop controversial nominees -- by changing Senate rules. Democrats called the rule change "the nuclear option," while Republicans referred to it as "the constitutional option."

Republicans wanted to have the power to pass nominees with just 51 votes. They argued that judicial filibusters, which can be overcome by 60 votes, are unconstitutional because the Advice and Consent Clause says that appointees must be confirmed or rejected by a simple majority vote.

But the Constitution does not dictate how the Senate advises or consents to a nominee. The Rules of Proceedings Clause allows the Senate itself to determine how it wants to consent. The Senate could decide that it wants a unanimous vote, or, on the other hand, a small committee to confirm nominations. The Constitution merely requires that the Senate somehow approve the President’s nominees. And under the current rules, not voting on a nominee - which is what happens with a filibuster - means not giving consent.

The threat

But the Rules of Proceedings Clause also makes it constitutional for Republicans to change the consent rules to a simple majority vote. Doing so would ensure majority power over the judicial nominations process.

Democrats promised to retaliate by refusing unanimous consent agreements, which help legislation to move quickly through the Senate. This reprisal would have slowed the Senate to a near-halt, causing senators from both parties to spend days on the floor voting on routine housekeeping matters.

To prevent a standstill, Senate moderates worked on a bipartisan agreement to thwart the nuclear option and ensure floor votes on some of Bush’s nominees.

The agreement

Guided by John McCain of Arizona, seven Republicans agreed to vote against the nuclear option if seven Democrats, led by Ben Nelson of Nebraska, allowed for floor votes on three of Bush’s judicial nominees. Priscilla R. Owen, Janice Rodgers Brown, and William Pryor will all get up-or-down votes, while two other contentious nominees, William Myers and Henry Saad, could still be filibustered.

But as part of the agreement, Democrats promised not to filibuster judicial nominees except under “extraordinary circumstances," a vague term that is likely to come up during future judicial battles.

And fights over the judiciary may be on the horizon, since President Bush could nominate as many as three Supreme Court justices.

A postponed crisis

According to Congressional Quarterly, Democratic Leader Harry Reid (Nevada) claims that: "the nuclear option is off the table; we don’t have to talk about it any more in our lifetime. It’s gone." While Republican leader Bill Frist (Tennessee) told CQ reporters quite the opposite: "The constitutional option remains on the table. I will use it if necessary."

The party leaders’ comments make it clear that the bipartisan agreement is just a cease-fire in an extended conflict. But that’s not to say that it won’t have a long-lasting effect on the nomination process. In the future, President Bush will have to consider the Senate reaction to his nominations, which may mean more moderate nominees ahead.

For more on the judicial filibuster fight, click here.

What do you think?

WomenMatter is a place to discuss life issues with other women. We don’t want to wedge women apart, but rather bring them together to dialogue. To participate in our blog, click here.

WomenMatter encourages women to educate themselves on the issues and then approach their representatives with ideas.

Even though the election is over, your voice is vital. Make sure your leaders know what’s important to you. To see how your representatives vote and to contact them, click here.

WomenMatter is dedicated to empowering women to participate in the political process. To do this we have invested in the most in-depth NONPARTISAN information, because we trust each woman to make up her own mind.

• We track nine issues every week and update this website several times a week.
• We launch after school GirlsMatter Clubs in middle and high schools to grow the next generation of politically aware women through a full curriculum and startup kit on girlsmatter.com.
• We do continuous research to make sure that we are meeting the needs of women across the country of all ages, races, incomes, preferences, and religions.
• We provide partnerships with nonpartisan organizations that provide services to women and advocate for them.

We offer all our services free of charge without memberships or subscriptions. To help us maintain this work - not just in election years but as a continuing part of women’s lives - please make a tax deductible donation, click here.

Posted on: 5/26/2005