A 'nuclear' attack on the Constitution

Changing the Senate's filibuster rules a dangerous option

The Bush administration and Senate Majority Leader Bill Frist are frustrated. The Senate has confirmed "only" 90 percent of the president's nominees for the federal bench. So now they are threatening to cripple a centuries-old Senate procedure in order to prevent any further "obstructionism" by the Democrats. This has aptly been labeled "the nuclear option."

The key issue is the filibuster. Under Senate practice, 60 votes are necessary to invoke cloture against a filibuster. Because the Republicans control only 55 votes in the Senate, they cannot prevent the Democrats from using the filibuster to block confirmation of a judicial nominee. Frist wants to eliminate the traditional supermajority requirement for cloture and allow a simple majority to shut off debate. This proposal is unwise, cynical and contrary to long-standing Senate tradition. [...]

This may not, technically, be unconstitutional or unlawful. But it is surely a dangerous abuse of power. Whatever the merits or deficiencies of the filibuster, they have nothing to do with Frist's nuclear option. This is about raw power. It is about power exercised in a manipulative manner purely for the sake of partisan advantage. The greatest threat to American democracy is the risk of capture. It was this danger that worried the framers most. The nightmare scenario is a moment in time in which one faction gains control of the White House, the Senate, the House and the judiciary, then uses that dominance to redesign the processes of government to ensure its perpetuation in power. If ever American citizens needed to be vigilant, it is now.

When President Franklin D. Roosevelt attempted a similar maneuver with his court-packing plan in the 1930s, Democrats as well as Republicans rightly objected. We can only hope that at least a handful of Republicans have the independence, the courage, the integrity, and the commitment to our nation's most fundamental values to stand up to Frist's dangerous and cynical nuclear option.

Go read the whole Geoffrey R. Stone article.