Posted by: David Offutt | November 24, 2008

Nuclear Option To Prevent Filibusters (Part 1)

During the summer of 2005, to give seven alleged right-wing extremists lifetime judicial appointments, the Republican majority threatened to use what has been called the “nuclear option”: that is, to officially limit the Senate tradition of the filibuster. Although a fragile truce had been arranged, the floor of the U.S. Senate was still the stage for a war between two classic movies. Democratic Minority Leader Harry Reid played the role of James Stewart’s idealistic junior senator Jefferson Smith in Frank Capra’s Mr. Smith Goes to Washington. Republican Majority Leader Bill Frist performed the role of Sterling Hayden’s deranged General Jack D. Ripper in Stanley Kubrick’s Dr. Strangelove, or How I Learned to Stop Worrying and Love the Bomb.

In the Capra film, Senator Smith wants to build a camp for the Boy Rangers-mr-smith-goes-washington-4690 in a beautiful valley. He soon learns that another bill has been proposed that will flood that valley. The senior senator from his state is in league with a bunch of fat cats, and they all stand to make a lot of money from an unnecessary dam. To stop Smith from messing up their dam scheme, his opponents decide to accuse him of what they are actually doing: of planning to make a personal profit from the creation of the boys’ camp. They use the Big Lie. To save his good name and to expose his accusers, Senator Smith, in desperation, takes the floor of the Senate and begins a filibuster.

Then, real-life radio announcer H.V. Kaltenborn makes a cameo appearance to describe what is happening. He says that it is “… democracy’s finest show – the filibuster: the right to talk your head off, the American privilege of free speech in its most dramatic form. The least man in the (Senate) chamber, once he gets and holds that floor, by the rules, can hold it as long as he can stand on his feet. Providing always – first, that he does not sit down; second, that he does not leave the chamber or stop talking.”

sterling_hIn the Kubrick film, Gen. Ripper secretly unleashes a flight of bombers to nuke the Soviet Union. He anticipates success and gives no thought to any unexpected repercussions. When our government learns what he has done, the President has to inform the Russians and tries to get their help to stop our planes. But there is a glitch that no one on our side knew about. The Soviet ambassador tells the U.S. President that Russia has developed a doomsday device, but it has been activated so recently that the Soviets have not had time to tell anyone: If the Soviet Union experiences a nuclear attack, a succession of nuclear explosions will take place all over the world!

Enter Jefferson Smith-Reid and Jack D.Ripper-Frist. Since no one should receive a lifetime appointment along a straight party line vote, Smith-Reid reserved the right to use of the filibuster to force the majority party to compromise on more bipartisan nominees. In contrast, Ripper-Frist (photo, right) was 0301frist3determined to rubber stamp George W. Bush’s lifetime appointments to federal courts regardless that the Senate’s role in the system of checks and balances would be forfeited. To accomplish this goal, Ripper-Frist was willing to change Senate rules to specifically prohibit filibusters from being used against judicial (lifetime) appointments.

160x_ap_reid_harry_051030Harry Reid  (photo, left) warned that if the Democrats were shut out from having a say in judicial appointments, the Democrats would use procedural tactics that were perfected by the Republicans during the 90’s to slow down Senate activities. Although that may have prevented the Republicans from doing harm elsewhere, the minority’s right to use the filibuster needed to be preserved.  It was precisely what the Republicans would do if the situation were reversed.  So the question was this: how do we protect minority rights from the tyranny of the majority and, at the same time, save the Republicans from their own worst enemy – themselves?

It takes 60 votes out of 100 to end a filibuster. That rule is fine and should stay as it is – especially for lifetime appointments! The rule that should be changed is the one pertaining to the number of votes required to give consent to lifetime appointments. A simple majority hardly seems sufficient. After all, a judge who receives a lifetime appointment must rule fairly on everyone who comes before him, not just on those who support the party that appointed him. The vote required for consent should be changed from 51 out of 100 to 60 out of 100: That way even some members of the minority party will almost surely have to support the nominee. Otherwise, require that the simple majority vote must consist of votes from at least 10% of the minority party before a lifetime nominee is confirmed.  This will let divisive presidents like George W. Bush know that they have to appoint judges who are interested in justice for all and not only those who  reflect the ideological philosophies of religious political extremists and “the haves and have-mores.”

The only real hope we had to prevent the Republicans from doing irreparable harm to minority rights and from further poisoning the political atmosphere in Washington was for Jack D. Ripper-Frist’s nuclear option to be voted down. At the time, this appeared highly unlikely. The Republican Party of the last 25-30 years has been notorious for its purges of those who didn’t go along. Even Barry Goldwater (Mr. Conservative of AZ) called it quits when he tired of this bunch telling him what God thought. Moderates like Charles Mathias (MD) were essentially told to leave the party unless they stopped voting for human rights and the environment. And don’t forget Mark Hatfield (OR). He was the one who voted against the amendment for term limits. Mr. Hatfield saved democracy, so we are still able to vote for whoever we want in the House or the Senate regardless of how long a candidate has been there. (You may have noticed that the Republicans have not mentioned term limits for quite some time. Mr. Bush’s election guru Karl Rove wanted to achieve a permanent Republican majority.) Hatfield saved the Republicans from themselves, but his long and very distinguished career was over.

We weren’t sure how many of the 7 to 11 RINO’s would risk political oblivion? RINO’s are how extreme right-wingers refer to those in their own party who don’t always go along – Republicans in Name Only.  Would the seven who signed the recent so-called compromise be up to voting against the nuclear option if and when Bill Frist brought it up? Snowe and Collins (ME), DeWine (OH) Chaffee (RI), McCain (AZ), Warner (VA), and Graham (SC) knew how disastrous the nuclear option would be, but would they risk being sent to the Republican graveyard for the sake of the country?

In Capra’s film, Jimmy Stewart collapses from exhaustion from his filibuster, but his guilt-ridden opponent confesses on the floor of the Senate and clears Jimmy’s good name. In Kubrick’s film, one of Sterling Hayden’s planes gets through, and pilot Slim Pickens rides the bomb down to its target. The film ends with mushroom clouds erupting all over the planet. It was hard to be optimistic and hope for a Capra-esque ending to Senator Frist’s needless Senate drama, but Frist never followed through on introducing the nuclear option.

P.S. #1: As we approach 2010, the RINO’s consist only of the two senators from Maine – Olympia Snowe and Susan Collins. They are the last of the moderate conservatives. The others have retired, been defeated, or joined the rest of the Republican conservatives and radical-reactionaries.

P.S. #2 On May 23, 2005, fourteen senators (7 Republicans and 7 Democrats) made a deal pertaining to 5 extremists who had been renominated by President Bush: three nominees for appellate courts stalled by Democratic filibusters would go forward while the other two would remain subject to filibuster. The deal was intended as a compromise that would prevent future Democratic filibusters of judicial appointments except under “extraordinary circumstances” and to prevent the Republican use of the nuclear option.

by David Offutt (updated December 28, 2009)
A version of this essay was published June 5, 2005,
in the El Dorado News-Times as a letter to the editor.

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