The possible use of the nuclear option first arose when the Democrats lost control of the Senate following the 2002 election, and President Bush started sending it increasingly hard-right nominees for federal judgeships. Democrats decided that their best option was to do what Republicans had done when Democrats controlled both Congress and the White House. During the 1968 presidential campaign, President Lyndon Johnson nominated two liberal justices for Supreme Court seats, proposing to move Abe Fortas from associate justice to chief justice and then to place Homer Thornberry in Fortas’s seat. Senate Republicans filibustered the Fortas nomination, which gave the next president, Richard Nixon, the opportunity to appoint a new chief justice. But when Democrats adopted that strategy and started filibustering Bush’s lower-court nominees to prevent him from packing the federal judiciary with right-wing judges and justices, conservatives became furious. Republicans refused to treat this as fair play, even though during the Clinton presidency, Senate Republicans had blocked votes on judicial nominations by simply refusing to process them, which meant some sixty Clinton nominees never even had a hearing before the Senate Judiciary Committee. But when Democrats sought to block Bush’s nominees, Republicans refused to treat this as fair play.
Here is how the nuclear option would work, as explained by The Hill, the newspaper that covers Congress. Rather than seek a vote to change the rules of the Senate, which they would lose since they do not have a two-thirds majority, Republicans would seek a ruling from the presiding officer of the Senate—most likely Vice President Dick Cheney, who is the president of the Senate—that Rule XXII, the cloture vote rule, does not apply to so-called executive matters such as judicial nominations submitted to the Senate by the president, but only to legislative business. Republican senators would likely argue that filibustering the president’s business, which consists of matters on the “executive calendar” such as nominations and treaties, would be a violation of the separation of powers. Needless to say, such a procedural ruling would be contrary to long practice, but Cheney would almost certainly give the GOP members exactly what they want, and Democrats would have little recourse. It takes only a simple majority to override a ruling of the presiding officer, but the Democrats do not have one. Nor could the Democrats follow the Killer D’s example in Texas by simply walking out, for the fifty-one Senate Republicans could run the Senate in their absence with more than enough senators for a quorum.
To date, the nuclear option has not been exercised, although Senate majority leader William Frist was ready to pull the trigger before a group of seven moderate Republican senators joined with seven Democrats to prevent the authoritarian conservatives from imploding the Senate.[*] The Gang of Fourteen (sometimes called the “Mod Squad” because they are all moderates) reached an agreement, which they executed in writing, that eliminated the use of the nuclear option—at least temporarily.[57] The gist of their understanding was that the seven Democrats would not vote with their party on filibustering judicial nominations except in “extraordinary circumstances,” and the Republicans in turn agreed not to vote with their party and the Republican leadership for the exercise of the nuclear option. (By subtracting seven votes from either side, the moderates, in essence, took control.) It was basically a good-faith effort, since only a few details were worked out, including that the Democrats would prevent further filibustering of three of Bush’s nominees. It was a perfect example of the way the Senate should work, using the give-and-take of compromise. The Gang of Fourteen has continued to meet, but their agreement is binding only for the 109th Congress, which will end in January 2007. Authoritarian conservatives in the Senate will likely try the nuclear option again if Republicans control the Senate in 2007, should Democrats try to use the filibuster on judicial nominees. Needless to say, there is nothing conservative about destroying Senate precedent and tradition, but then, authoritarians are not troubled with conscience, even if they call themselves conservatives.
It was Senate majority leader William Frist who led the Senate to the brink of nuclear catastrophe. Frist had been a well-known heart transplant surgeon at Vanderbilt University’s hospital in Nashville, Tennessee, before he was elected to the Senate in 1994. Before becoming majority leader he had made almost no serious news whatsoever since arriving in Washington, although he was occasionally featured in human interest stories. He provided emergency care for the man who shot a Capitol Police guard, and, in turn, was shot by the guard; and after the anthrax attacks in the Senate, his explanation of how the deadly poison worked was enlightening.
A December 31, 2001, profile in Newsweek described him as “brainy and intense, confident to the point of arrogance,” “a daredevil by nature,” “ambitious, eager to be noticed, [but not] a team player at heart—and White House strategists know it.” His seemingly iconoclastic independence was appealing, and many welcomed his selection by his Senate peers to replace Senator Trent Lott (R-MS) as majority leader. After being told by an insider that if Vice President Dick Cheney’s health took a serious turn for the worse, Bill Frist was at the top of Bush’s list to replace him, I decided to read the hagiography by Charles Martin, Healing America: The Life of Senate Majority Leader William H. Frist, M.D., which revealed that Frist has been slated to be president of the United States since he was only a few days old.
It is a novel story. It seems that when Bill Frist was busy campaigning for the Senate in 1994, his associate, Dr. Karl VanDevender, was responsible for running the Frist Clinic, which recently had admitted a longtime Frist family employee, the trusted yardman, housekeep, and handyman, whom they affectionately called “Mr. John.” On election night Karl VanDevender was monitoring Mr. John, who was fading fast of kidney failure. At one point in the evening, as VanDevender kept an eye on the television and reported the returns, Mr. John whispered his last words. “Dr. Karl,” he said, “since the day this happened, more than forty-four years ago, I’ve only told two people—my pastor and my wife.” VanDevender brought a chair to Mr. John’s bedside and leaned in close to get every word of Mr. John’s astonishing story.
Soon after Bill Frist’s mother brought him home from the hospital, she appeared on the front porch carrying a baby basket with Bill sound asleep in it. He was only a few days old. Bill’s mother said she wanted to go down the street to her sister’s house, and she asked Mr. John to wait with baby Bill until she returned. “I’ll be back in five minutes,” she promised, and off she went. “So I sat down on the porch next to the boy,” Mr. John continued, “and no sooner had she left than a bright light came down from heaven. An angel wrapped his golden wings around the baby and said, ‘John, don’t worry about this baby. He’s going to be fine.’” Mr. John caught his breath and finished reporting the angel’s words. “‘One day, he’s going to be president of the United States.’” With this, Mr. John took another deep breath, and added, “That Senate race? That ain’t nothing. He’s got that in the bag.” Mr. John died that night, shortly after learning Bill Frist had defeated an eighteen-year incumbent, Democratic senator Jim Sasser.[58]
*
The Republicans were led by Senator John McCain (AZ), who was joined by Senators Lindsey Graham (SC), John Warner (VA), Olympia Snowe (ME), Susan Collins (ME), Michael DeWine (OH), and Lincoln Chafee (RI). The Democrats were led by Senator Ben Nelson (NE), and he was joined by Senators Joe Lieberman (CT), Robert Byrd (WV), Mary Landrieu (LA), Daniel Inouye (HI), Mark Pryor (AR), and Ken Salazar (CO).