The Byrd Option

The Byrd Option
The former Senate leader knew how to break a filibuster.
Monday, March 7, 200512:01 a.m.
West Virginia Senator Robert Byrd got into hot water last week for introducing Hitler into the Senate's already acrimonious debate on Democratic filibusters of President Bush's judicial nominations. Speaking of the Republicans' threatened "nuclear option," he said, "We, unlike Nazi Germany or Mussolini's Italy, have never stopped being a nation of laws, not of men."

Herr Byrd does get carried away, but more revealing than his rhetoric was the substance of his remarks, on which he elaborated in an op-ed article in Friday's Washington Post. Somehow in his excoriation of a tactic that would deny Senators "their right to free speech on judicial nominations," Mr. Byrd forgot to mention that he pioneered the practice.

The "nuclear option" is the scary-sounding name for a simple Senate rule change to stop the filibuster of appeals-court nominees. Ending a filibuster requires 60 votes--rather than the simple majority of 51 that was sufficient to confirm judges for all of Senate history until this Presidency. The idea is that if the Democrats filibuster another nominee, Majority Leader Bill Frist would ask for a ruling from the Senate's presiding officer that under Rule XXII only a simple majority vote is needed to end debate on judicial nominations. Assuming 51 Members concur--and GOP nose-counters say they have the votes--the Senate would then move to an up-or-down floor vote.

Changing Senate precedents by majority vote would be nothing new to Mr. Byrd, who used the tactic to change Senate precedents on filibusters and other delaying tactics when he was Majority Leader in 1977, 1979, 1980 and 1987. This history is detailed by Martin Gold and Dimple Gupta in the current issue of the Harvard Journal of Law & Public Policy.

The example most closely analogous occurred in March 1980, when Mr. Byrd mounted a charge to eliminate the possibility of a double filibuster--first on a motion to proceed to a nomination and then on a nomination itself. He wanted to push through the confirmation of Robert White as ambassador to El Salvador and, as Mr. Gold and Ms. Gupta explain, "this well established procedure presented potential difficulties."

And so Mr. Byrd moved to get rid of the first filibuster opportunity--debate on motions to proceed to nominations. GOP Senator Jesse Helms objected and the presiding officer ruled in Mr. Helms's favor. Mr. Byrd appealed, and the Senate voted 54-38 to overturn the chair. The rule change went into effect.

Also closely analogous to today is Mr. Byrd's threat a year earlier to deploy the nuclear option if a change he had proposed to Rule XXII was filibustered. "I want to change the rules in an orderly fashion..." he said. But, "if I have to be forced into a corner to try for a majority vote, I will do it because I am going to do my duty as I see my duty." In the end, the threat of going nuclear was enough to break the opposition.

Fast forward to 2005. The fight over the judicial filibuster is now coming to a head--even though GOP Judiciary Chairman Arlen Specter is doing his best to delay what looks like an inevitable confrontation. Mr. Specter keeps holding out hope that Democrats don't mean what they say about filibusters, going so far as to imagine aloud last week that New York Democrat Chuck Schumer might support William Myers's nomination to the Ninth Circuit. Sorry. In the hearing last week, Mr. Schumer and other Democrats pounded Mr. Myers as a threat to civilization because he was once an industry lobbyist on environmental issues.

Other Democrats are also digging in. Most disappointing is Ken Salazar, the new Senator from Colorado, who already seems to be reneging on his campaign pledge to support a floor vote for every judicial nominee. Mr. Salazar sent a letter to Mr. Bush last week asking him to withhold certain nominations. Some liberals claim that the Republicans did the same thing to such Bill Clinton nominees as Richard Paez, but that is simply false. Mr. Paez had a long wait but he was ultimately given a floor vote and was confirmed for the Ninth Circuit. Mr. Bush's nominees aren't merely being delayed; they are being denied a vote.

It may well be that the filibuster flap will cause Democrats to raise the roof and use Senate rules to obstruct other legislation. But the alternative is for Republicans to let a Senate minority dictate who can sit on the federal bench--even after two elections in a row in which Democrats lost Senate seats in part because of the judicial filibuster issue. Elections ought to mean something. If Republicans allow a repeat of the last two years, their own voters will start to hold their timidity against them.

Meanwhile, rhetoric does matter in politics, as Herr Byrd has learned from his wacky Adolf allusions. As Republicans move to explain what they're doing to give nominees their Constitutional right to a vote on the Senate floor, we suggest they refer to the tactic as the Byrd option.