After he retired from the Senate, Dale Bumpers warned that if the Republican Party ever got 2/3-control of the Congress we could pretty well kiss the Constitution goodbye. He said this because it requires a 2/3-vote in both houses of Congress to propose a constitutional amendment. In the Senate, 2/3 is 67 senators out of the 100 members. That is also the number required for a change in the Senate rules. To stack the federal courts (including the Supreme Court!) with extremely conservative activist judges, in the summer of 2005 the Republicans threatened to violate the rule for changing the rules. That is precisely what Republican Senate Majority Leader Bill Frist planned to do if the Democrats refused to allow the Senate to rubber stamp President George W. Bush’s lifetime appointments to the judicial branch.
The Republicans had a 55 to 45 majority over the Democrats. Since the Republicans only want extremely conservative judges on the courts, the only way the Democrats can force a compromise in favor of more moderate judges is to use the filibuster. By the rules, a filibuster can only be ended with 60 out of 100 votes. So here was Frist’s “nuclear option”: He wanted to change the rules to not allow the use of the filibuster for lifetime judicial appointments. He was going to break Senate tradition and do this with a simple majority vote (51 out of 100). This would effectively eliminate the Senate’s role in checking the power of the President to appoint justices to the federal courts. Advice would be prohibited, and consent would be automatic.
It got worse! Frist knew that there were five moderate conservatives in his party who might not go along with this travesty. This meant that the Vice President would be used to break the tie making the vote 51 to 50. This would exploit a flaw that exists in the Constitution. Our Founding Fathers did not create the office of the vice president with political parties in mind. Originally, the vice president was picked from a list of presidential possibilities: he was the one who received the second highest number of votes from the Electoral College. The Constitution gives him two jobs – to be president of the Senate and to vote only in case of a tie. It was never envisioned for him to be part of the executive branch of government unless he became the chief executive upon the death of the president. The formation of political parties and running mates changed that, and the 12th Amendment changed the way he is elected. Unfortunately, his role in the Senate has remained the same!
If Dick Cheney had broken the tie vote on this issue, the executive branch would have been responsible for changing a rule in the legislative branch. And he would have done this for the purpose of putting the executive branch’s supporters into the judicial branch! What if Cheney also voted to change the Senate’s rule so that he could have made his friend Antonin Scalia the next Chief Justice? Remember that Scalia was one of the five justices who appointed George W. Bush to be President in 2000! The separation of powers among the three branches of government would be virtually wiped out.
Frist’s plot was called the “nuclear option” because it blatantly and aggressively would have established the tyranny of the majority and greatly added to the atmosphere of fear and loathing in Washington, D.C. More to the point, it was a “nuclear option” because of the two immediate and long-lasting catastrophic effects it would have had on the American republic. Dale Bumpers probably did not anticipate this particular attack on the Constitution. It would have allowed the Republicans to get rid of the two most important principles of our constitutional system without a 2/3-majority vote! Those two principles are the ones that make our democratic-republican form of government work: the system of checks and balances and the separation of powers between the executive, legislative, and judicial branches.
Furthermore, please don’t be tricked by the misleading argument by the Republicans that all judicial nominees should receive an up or down vote. Even the Republicans don’t believe that. If they did they wouldn’t have prevented 60 of Clinton’s appointments from ever getting out of committee. In his first term, George W. Bush had 208 of 218 of his court appointments confirmed with up or down votes with the Democrats participating. Only ten were not because of their highly questionable records. Mr. Bush and Sen. Frist decided that the “nuclear option” was the only way to get some of these extremists to eventually be confirmed.
Another thing to keep in mind is that two senators from one state may represent more people than the two senators from another state. For example, the two Democratic senators from Arkansas represent 2,700,000 people. The two Republican senators from Maine represent only 1,300,000, Wyoming’s two Republicans represent only 500,000, and Alaska’s two Republicans represent 640,000. You can see the problem.
The minority party in the Senate may at times represent the majority of our population – in mid-2005 that was the Democrats. Arkansas’ two Democratic senators represent more people than the six senators for those three states combined, yet the citizens of Arkansas are outvoted 6 to 2. If we add the two Democratic senators from California (who represent 35,000,000) to the two Arkansas senators, a vast majority of the people are still outvoted 6 to 4.
That is why an up or down vote between 55 Republicans and 45 Democrats may not reflect the will of the American people. The Senate was originally set up to protect the states with smaller populations from the states that had more people. The Republicans have found that they can use the smaller states with fewer populations to inflict their agenda on the states with larger populations.
As Bush/Cheney and the Republican Congress attempted to consolidate their power over all three branches of our government by abusing the tradition of the filibuster, we also saw them use scapegoats to advance their popularity. They resurrect attempts to pass laws or amendments that discriminated against specific groups of American citizens, such as efforts to thwart women’s rights and gay rights. Also worrisome were those loyalty oaths that Mr. Bush required Americans to sign before they were allowed to attend his rallies. There was a chance they may have tried to extend those oaths to more of us as they did during the McCarthy Era.
President Bush won less than 48 % of the popular vote in 2000 and less than 51 % in 2004, yet he and his congressional Republicans wanted to rule as though they had a landslide mandate. Just think, all this time many voters presumed that Mr. Bush was such a dunce that he was really no threat to the republic. Some voters even had the terrifying idea that that was okay because his co-president Cheney and his “Brain” Karl Rove were doing all his thinking for him. I always contended that Mr. Bush was not stupid. He knew what he wanted to do to us and just about succeeded. It seems that he may have stayed up nights studying Mein Kampf, and , if so, he appears to have mastered it quite well!
by David Offutt (updated December 26, 2009)
A version of this essay was published July 6, 2005,
in the El Dorado News-Times as a letter to the editor.