If Republicans seek to break the Democratic filibuster of judicial nominees, they would have to do so over the objections of the Senate parliamentarian, according to Senate Minority Leader Harry ReidHarry ReidRepublican failure Senate about to enter 'nuclear option' death spiral Top GOP senator: 'Tragic mistake' if Democrats try to block Gorsuch MORE (D-Nev.).
Such objections by the appointed keeper of the Senate’s rules would have little practical effect — since any Republican sitting in the chair would be free to reject or ignore the parliamentarian’s advice. But opposition from an ostensibly neutral staff member could have a political impact, making the GOP tactic appear to be out of bounds.
Even Sen. Trent Lott (R-Miss.) — a strong proponent of breaking the filibuster — acknowledged that “anything right now might have some political value” in the charged debate over judicial nominations.
But, as Lott put it, “The presiding officer rules. The parliamentarian is a human being. He offers advice.”
When he was majority leader, Lott appointed the parliamentarian, Alan Frumin, after firing his predecessor, Bob Dove.
Reid received the assurance from the parliamentarian during a private conversation within the past few weeks, according to aides. Reid told reporters this week that the parliamentarian assured him that, if Republicans go through with the move, “they will have to overrule him, because what they are doing is wrong.”
A Congressional Research Service report on the subject, updated this month, leaves little doubt that moves being contemplated by Republicans — specifically a ruling that a supermajority requirement to cut off debate is not in order — would not be based on previous precedents of the Senate.
The appeal of such a ruling would normally be debatable, although a Republican could move to table any such appeal — denying Democrats the opportunity to delay a ruling.
“Employment of either of these versions of the ‘constitutional option’ would require the chair to overturn previous precedent,” according to the report, “either by ruling on a question that by precedent has been submitted to the Senate, or by ruling non-debatable a question that by precedent has been treated as debatable.”
Reid also said that, if Republicans employed the so-called “nuclear option,” “it would do harm forever to this country and to this institution.”
According to one Senate Democratic aide, Reid made known his conversation with the parliamentarian “so that people know how beyond the pale this is.” Frumin did not return a phone call seeking to confirm his conversation with Reid by press time.
Republican Senate aides say they have long expected that the parliamentarian might not rule in their favor, since there is no specific precedent on the books to sustain it. But they note that whoever is in the chair would not even have to ask the parliamentarian for his view, and they emphasize the unprecedented nature of the Democratic filibuster of appeals court nominees.
Under another scenario laid out by Marty Gold, a former senior aide to Majority Leader Bill Frist (R-Tenn.), Frist may seek a ruling that continued debate on a nominee is “dilatory.” Whoever is sitting in the chair then could rule on his own that debate should be cut off, setting off an appeal and tabling motion.
Meanwhile, as the moment when Republicans may act approaches, GOP senators have begun thinking about how to stage-manage how the nuclear option plays out on the floor for maximum political impact — as well as parliamentary effect.
Originally, it had been thought that Vice President Cheney, who also serves as president of the Senate, would sit in the chair to issue the seminal ruling. But Sen. Ted Stevens (R-Alaska) told The Hill that he is so upset by the Democratic filibuster that he plans to be in the chair. As the most senior member of the majority party, Stevens is the president pro tempore of the Senate, a largely ceremonial post that puts him in the presidential line of succession.
According to Lott, Stevens is “the best man in the chair. … He knows the rules of the Senate as well as anybody.” Lott did not rule out that Cheney would be in the chair.
Republicans also are thinking about which GOP member would raise a point of order from the floor. Lott said that, if he were setting up an ideal situation, he would have Stevens sitting in the chair and Sen. Orrin HatchOrrin HatchGOP senator to Dems: 'What's all the whining about' on Supreme Court? Trump, time to end outsourcing ... at the IRS Hatch: I may retire if Romney runs to replace me MORE (R-Utah) raising the point of order from the floor. He also mentioned Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), although Specter has expressed concerns about the impact exercising the nuclear option could have on the Senate.
Alternatively, Frist may raise the point of order himself. Any role played by Frist, who has said he is retiring in 2006, could affect his likely presidential campaign.
“If he does that,” Lott said, “it would show courage, leadership and would probably affect the outcome. But you’ve got to weigh the other consequences of that now.”
Meanwhile, aides say Frist and Reid continue to seek ways to avoid a confrontation on the floor through talks, although neither side has reported any progress.