Bush has made spent fuel of Frist's 'nuclear option'

Senate Majority Leader Bill Frist (R-Tenn.) rocked Washington last week by threatening that he might invoke the “nuclear option” and rule that filibusters of judicial nominations are unconstitutional. He is only spewing hot air. The fact is that the Senate Republicans voluntarily disarmed themselves of the only viable way to block Democratic filibusters when they failed to change the rules of the body at the start of the new Senate session two months ago.

Senate Majority Leader Bill Frist (R-Tenn.) rocked Washington last week by threatening that he might invoke the “nuclear option” and rule that filibusters of judicial nominations are unconstitutional.

He is only spewing hot air. The fact is that the Senate Republicans voluntarily disarmed themselves of the only viable way to block Democratic filibusters when they failed to change the rules of the body at the start of the new Senate session two months ago.

As those who recall the annual liberal efforts to curb Southern Democratic filibusters of civil-rights legislation in the ’50s and ’60s may know, the rules of the Senate are adopted de novo each time a new Senate convenes. Conservative Republicans decided late last year to amass sufficient votes to end the practice of filibusters on judicial nominations totally. Their effort was successful. A majority of the Senate — all that was required to change the closure rule — informally agreed to end the undemocratic practice of filibustering on presidential appointments to the bench.

During the 2004 campaign, the GOP wisely decided not to discuss its plans for fear that it would rekindle a last-ditch stand by Democrats anxious to preserve their relevance to the confirmation process. But the Republicans bided their time until the election was over, fully planning to block filibusters once they came back into session in January 2005.

But then a funny thing happened: Nothing. Despite all the planning and brave talk, no Republican sought to modify the filibuster rule. The Senate reconvened, and the rule stood as it has been for decades — with the 60-vote requirement to terminate debate.

Why didn’t the GOP close down the filibuster when it could? Did the conservatives lose their nerve? Not very likely. Did they suffer an attack of conscience and decide that muzzling the Democrats was unfair? Even less likely. The fact is that with Republican control of the White House assured for four years and domination of the House of Representatives guaranteed until at least 2012, when the next chance will come to undo the pernicious effects of gerrymandering, the Republicans don’t need the filibuster. Only the Democrats do.

So why did the GOP not deliver the mortal blow when they could have easily done so? My guess is that the White House stopped them from doing so. Bush and Rove must have sent signals to lay off the cloture rule. Only an intervention of that order of magnitude would have been sufficiently effective to vitiate the carefully laid plans of the Republican majority.

 But if the administration did intervene and stop the emasculation of the filibuster on judicial nominations, why did it do so? Why would the president voluntarily make it easier for Democrats to torpedo his judicial nominations?

President Bush and Karl Rove probably figured that they did not want the power to appoint judges without opposition from the Senate Democrats. They realized that without the filibuster there was nothing to stop them from nominating judges who would cling to a hard right-wing agenda on Roe v. Wade and other issues, permanently alienating much of the country and driving a stake into GOP efforts to reach out to independents and women.

Bush needs the filibuster so that he can nominate judges who will not drive a wedge into the politics of America. He needs an excuse to tell his far-right friends why he is not naming a new Clarence Thomas or William Rehnquist or Antonin Scalia to the court. Bush grasps that such an appointment would be a step that would shatter the unity he is achieving after his reelection. And he needs the filibuster to keep the loyalty of his base even as he disappoints their most earnest expectations.

Bush might submit a nominee who would trigger a filibuster when the Supreme Court vacancy comes. He might then be forced to name a more moderate alternative. Or he might circumvent the process entirely and name a nominee acceptable to all, as Bill ClintonBill ClintonMark Cuban won't accept a position in Clinton administration Nuances of crime stats lost in 2016 presidential debate Clinton calls Mark Cuban a 'real billionaire' to swipe at Trump MORE did. But, in any case, Bush needs the filibuster. That’s why it is still on the rulebooks.

Morris is the author of Rewriting History, a rebuttal of Sen. Hillary Rodham Clinton’s (D-N.Y.) memoir, Living History.