November 22, 2004

November 22, 2004 | Commentary on Political Thought

Legislative Lowdown - Week of November 22

You've heard of the "nuclear option." But how about the "constitutional option?"

The phrase relates to Senate Majority Leader Bill Frist's reported decision to force through a long-overdue change in Senate rules governing the confirmation of judicial nominees. Frustrated by the Democrats' unprecedented use of procedural tactics to torpedo President Bush's nominees for the federal appeals courts, Frist and his Senate colleagues have allegedly decided to deploy what conservative jurists describe as the "constitutional option" during the next confrontation over a judicial nomination.

The "constitutional option" refers to a Senate rules change that would guarantee something most legal experts always took for granted--that even the most controversial nominee will, at the end of the day, receive an up-or-down vote on the Senate floor. During Bush's first term, outgoing Senate Minority Leader Tom Daschle abandoned more than two centuries of Senate tradition and established the Daschle Precedent of denying nominees a floor vote through the use of the filibuster, a potent procedural tool that effectively raises the number of votes required for confirmation from 51 to 60. Thus, Bush's nomination of an esteemed jurist such as Miguel Estrada to the D.C. Court of Appeals failed even though Estrada consistently won the support of 53 senators during Republican efforts to break the Daschle filibuster.

How would the "constitutional option" unfold? The next time Senate Democrats balk over a principled Bush nominee, Frist would attempt to resolve the impasse. Failing that, he would ask the presiding officer of the Senate to rule on the appropriateness of applying the 60-vote supermajority requirement to judicial nominees. The presiding officer is a senator who oversees Senate floor debate and is empowered to interpret Senate rules and establish binding Senate precedents. Given the gravity of this ruling, expect to see the Senate president pro tem, Alaska Republican Ted Stevens, occupy the chair when Frist issues his challenge to the 60-vote requirement.

Next, the presiding officer would rule that using the filibuster in this narrow set of circumstances is inappropriate, perhaps noting (but only in passing) the constitutional concerns that arise when a Senate minority effectively eviscerates the "advice and consent" requirement with respect to court nominees. The ruling would lower the confirmation threshold from 60 to 51 votes. On cue, a senior Democrat, either the new minority leader, Nevada's Harry Reid, or perhaps Senate procedural expert Robert Byrd of West Virginia, would appeal the ruling of the chair. The ensuing floor vote to implement the presiding officer's ruling, which would unfold largely along party lines, requires only a simple majority.

It is worth noting that a number of seasoned conservatives with long Washington memories object to this strategy. They recall the days when liberals controlled both the White House and Capitol Hill. Then, the only thing standing between the American people and a surge of big-government legislation was a determined minority of conservative senators willing to use the filibuster on behalf of core conservative principles. These conservatives worry that one day Blue America liberals will control the levers of power and will use this precedent against conservatives. But those who support the change anticipate that it would be extraordinarily narrow in scope, applying only to nominations to the federal bench and specifically excluding other presidential nominations and bills on the legislative calendar.

A New Day at the House Appropriations Committee. The turmoil over the potential ascension of Pennsylvania Republican Arlen Specter to the chairmanship of the Senate Judiciary Committee has overshadowed another crucial succession battle to head a powerful Hill committee -- that of the House Appropriations Committee. Three senior Republican members have thrown their hats into the ring: California's Jerry Lewis, Kentucky's Hal Rogers and Ohio's Ralph Regula. Unlike previous succession battles, which unfolded in secret before a select group of House leaders, this time all three contenders have given their rank-and-file House Republican colleagues an unprecedented opportunity to evaluate their credentials to lead the committee that determines the details of more than $800 billion of federal spending annually.

Two groups of House Republicans, the Mainstream Caucus of 50 House moderates and the Republican Study Committee's 90-plus conservatives, will receive the three contenders in private for what amount to job interviews. Though they sport reputations as moderates, Rogers and Lewis enjoy lifetime conservative ratings (as compiled by the American Conservative Union) of 84 and 82%, respectively. Mr. Regula's moderate reputation is borne out by his lifetime score of 68%, though in recent years all three have earned ACU scores of 80% or higher.

Republican Study Committee members aspire for a return to the days, as chronicled in political scientist Richard Fenno's classic 1966 study of the House Appropriations Committee, when committee members expressed a bipartisan interest in safeguarding the U.S. Treasury from the inflated spending requests from the federal agencies. Back then, the working assumption among committee members was that every agency submitted inflated budget requests and that it was the committee's mission to pare them back.

No one expects the committee to regain its lost principles any time soon. But RSC members will look for assurances that the next chairman will put an end to the spending shenanigans that drive up federal spending. And they'll pay particularly close attention to the prospective chairman's attitude toward RSC-supported reforms to the federal budget process that promise to end the reign of the big spenders.

Mr. Franc, who has held a number of positions on Capitol Hill, is vice president of Government Relations at The Heritage Foundation.

About the Author

Michael Franc Distinguished Fellow
Government Studies

First appeared in Human Events