WHO'S THREATENING THE CONSTITUTION

These two articles from the Post offer a very revealing contrast:

A Likely Script for The 'Nuclear Option' (Mike Allen and Jeffrey H. Birnbaum, May 18, 2005, Washington Post)

Tomorrow or Friday, Frist and other Republican senators are likely to file a motion seeking cloture, or an end to debate. One session day must pass before a vote to end debate, so a vote would be held and Republicans would expect to get fewer than 60 votes to confirm Owen.

Frist aides say he has not decided exactly what would occur next. But the scenario most widely expected among senators in both parties is that he would seek a ruling from the chair -- Vice President Cheney, if it looked as if the vote was going to be close -- that filibustering judicial nominations is out of order. Assuming the chair agreed, Reid would then object and ask that the ruling of the chair be tabled. Most Republicans would then vote against the Democratic motion, upholding the ruling. Then the Senate would move to a vote on Owen, and a precedent will have been set that it takes 51 votes, not 60, to cut off debate on a judicial nomination.

A virtual script for what could happen next is included in an article published last fall in the Harvard Journal of Law & Public Policy by Martin B. Gold, a partner at Covington & Burling who is a former floor adviser to Frist, and Dimple Gupta, a former Justice Department lawyer who was hired in March by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.).

In making their case, the authors pointed to the ways that Sen. Robert C. Byrd (D-W.Va.) used similar tactics to lower requirements for certain legislative actions from a supermajority to a simple majority when he served twice as majority leader, in the 1970s and 1980s.

"The reason for calling it 'the constitutional option' is that it's an exercise of the Senate's constitutional power of self-governance," Gold said. "The Senate sets precedents all the time, and it sets them by majority vote."

Fred Graham, who was chief counsel of a Senate Judiciary subcommittee during a classic filibuster during the 1960s and now is chief anchor and managing editor of the Court TV cable channel, said existing rules allow Republicans to accomplish what they have promised.

"If Bill Frist asks for a ruling from the chair from Dick Cheney, of course Cheney will rule in his favor," Graham said. "What are the Democrats going to do, appeal to the Supreme Court? There's no place for them to go. That's the power of the majority."

Bipartisan Group Seeks Own Course On Nominees (Dan Balz, May 20, 2005, Washington Post)

At times they have appeared agonizingly close to a deal. At other times their cause has seemed hopeless. But what is most remarkable about the dozen or so senators working to avert a historic showdown over President Bush's judicial nominees is their potential to control the Senate's destiny without the explicit blessing of their leadership or their party's most important constituencies. [...]

All week, these senators have shuttled from one office to another seeking compromise as the Senate has begun the countdown to the moment when Majority Leader Bill Frist (R-Tenn.) seeks to change rules to allow a simple majority to shut off a judicial filibuster, rather than the 60 votes now required.

Behind closed doors, they have carved up the future of a number of Bush's judicial nominees, deciding among themselves who should be confirmed and who should not. The two sides have traded pieces of paper and argued over words and phrases. [...]

Simple arithmetic gives the group potentially great power. If six Republicans and six Democrats reach agreement and stick to it, they can shut down any filibuster lodged by Democrats against a judicial nominee and block any effort by Frist to change the rules. They also can determine the fate of the nominees already on the Senate docket and can provide the balance of power in any fights over Supreme Court vacancies.

Never mind the Democratic minority, these guys are trying to reduce the issue to the whims of a gang of 12.

Posted by Orrin Judd at May 20, 2005 12:20 PM