Senate Majority Leader Bill Frist has again called for a showdown on the nuclear option to push through the few judges who have failed to be approved by the Senate so far. An AP report shows a very close call either way, with the intentions of seven Republicans undeclared, and five of them needed by Frist to pull off this stunt.

The high-strung rhetoric marches on, however, with pro-nuclear forces insisting that the filibuster is "unprecedented" and that Democrats are pulling some kind of drastic power play. On both counts, the opposite is true.

MYTH: Judicial filibustering is unprecedented

[A] partisan minority of senators now demands - for the first time in history - that [Owen] must be supported by a supermajority of 60 senators, rather than the constitutional rule and Senate tradition of majority vote... [S]he enjoys the enthusiastic support of a bipartisan majority of senators. Yet a partisan minority of senators now insists that Owen may not be confirmed without the support of a supermajority of 60 senators - a demand that is, by their own admission, wholly unprecedented in Senate history. Why? Simple: The case for opposing her is so weak that changing the rules is the only way they can defeat her nomination. (Sen. John Cornyn, R-TX, "Four-year injustice," National Review, 5/9/05)

[T]here is no precedent for using the filibuster as an overall strategy for thwarting any up-or-down vote ever on the Senate floor on a string of judicial nominees favored by the majority. (Jay Ambrose, "Filibuster passions," Washington Times, 5/8/05)

REALITY

This is one of the weirdest, most desperate tactics to emerge in the filibuster debate. Even the absurd claim that the filibuster is "against people of faith" can be conceivably worded as a matter of opinion -- but here we are in the factual realm. And it is extremely easy to disprove this claim -- just cite some of the many judicial nominees that have been filibustered -- from Abe Fortas in 1968 to Berzon and Paez in 2000.

But even that list understates the reality of the judicial nomination process. From the beginning of the republic, the Senate has operated on unanimous consent, so that a single senator could gum up the works. As former Senate Majority Leader George Mitchell wrote in the New York Times last week, "Since 1789, the Senate has rejected nearly 20 percent of all nominees to the Supreme Court, many without an up-or-down vote." It was only in 1917 that the cloture vote to end debate -- i.e., stop a filibuster -- was introduced.

Even still, with the cloture vote, many avenues existed to block nominees. For example, a senator from the same state as a nominee could "blue slip" them in committee -- a blocking measure Al Gore called a "shadow filibuster." If all minority members of the Judiciary Commitee objected, the nominee was similarly blocked, and the chair of the commitee could always confound the scheduling. These measures were all used to ensure compromise and exert the Senate's constitutional power to reject nominees, and they were all eliminated by Judiciary chair Orrin Hatch when his fellow Republican George Bush was elected president.

More than sixty of Bill Clinton's second-term judicial nominees were blocked by the Senate without an "up-or-down vote," most of them by shadow filibuster in committee. (Compare this to ten Bush nominees blocked out of 218.) It is no longer possible to filibuster in committee, leaving the floor filibuster as the only option.

MYTH: Democrats are abusing the process

Getting rid of the filibuster for judicial nominees would indeed be an escalation in partisan conflict. But wholesale derailing of potential Supreme Court nominees at the appellate level by filibuster was also an escalation, and it's unacceptable. (Tod Lindberg, "Stop the filibustering," Washington Times, 5/10/05)

The Bush nominees the Democrats fear are judges who embrace the Constitution. A judicial branch that takes the laws of the land and the Constitution seriously could give Democrats outcomes they don't want. What Democrats do want is continued judicial tyranny, and it's this tyranny that should arouse passionate objection, lead to red-faced sincerity and should give rise to anger. (Jay Ambrose, "Filibuster passions," Washington Times, 5/8/05)

[A] paradox in representative government is that political power can legitimately go against popular will, even though earlier popular will is what placed that power in office. That's because the electorate is driven more by long-term sentiment over many issues in the aggregate versus short-term feelings over a few in the polls. Hence, the Republican Party is free to secure a greater reach into the future by fighting now for these lifetime judicial appointments. (Alan Nathan, "Political power vs. popular will," Washington Times, 5/4/05)

REALITY

As noted above, blocking judicial nominees, by filibuster or otherwise, is nothing new. This is part of how the Senate conducts its business -- a ballet of position and compromise, if you'll forgive the cliche. It's important to step back and consider the larger picture.

Although a case can be made for the Senate as a deliberative body and a continuing institution -- a case made eloquently by Al Gore in a recent speech -- that is not the focus of the nuclear option. The Republicans could give a damn about Senate rules -- just listen to their glowing opinions of the filibuster when they were in the minority. (A similar list of quotes could be compiled on Democrats.) There is nothing principled about the nuclear option.

Instead, Republicans want to pass these nominees. Right now. Period.

Why is that? Frankly, there is nothing special about these nominees -- who are, as a lot, unqualified or extreme -- except for the fact that they are the only ones of the more than two hundred total to be rejected. Even if Republicans truly felt one judge were perfect in every way, shouldn't they be able to just find another one equally satisfying?

But no -- each of these judges is sacrosanct. Bill Frist's "compromise" offer would guarantee the confirmation of each of them. The wording going around is that each nominee "deserves" a vote, and the president "deserves" it, too. Of course, if that were the case, then there would be no point to Article II, Section 2 of the U.S. Constitution, which stipulates that the president's nominees receive the Senate's "advice and consent" before they can be confirmed. Instead, the goal is to ensure that the people get the judiciary they deserve. No man or woman is born with the God-given right to be appointed to the federal bench.

Chris Nelson, author of the insider Nelson Report, wrote that these nominees, along with the ill-qualified John Bolton, are important to this administration as proof against any cracks in their golden armor. This is the president who could not admit to one mistake when running for president, and this total war is necessary to maintain the political will and power he has among many of his supporters.

And what it comes down to most of all is the upcoming battle over who sits on the Supreme Court. Bush will appoint at least one, and perhaps a few, justices, and for the small constituency that requires a new Court, only the most extreme judicial philosophy will be acceptable.

If you look at these special nominees, though, what you see is that that small constituency isn't the religious right, as you would expect from the "people of faith" rhetoric. It's the libertarian, anti-government right.

In any case, it should be absolutely clear that the nuclear option -- far from a principled position of "up-or-down votes" -- is transparently a dramatic power play to ensure the redesign of American government, whether on moralist or corporate lines. That this is not clear -- in fact, it is quite opaque, even after all the bluster of the past few weeks -- might be proof enough of the wisdom of our forebears in framing a slow government, and a brake on the march of power, the filibuster.