Democratic Underground

The Nuclear Option

March 30, 2005
By Katherine Brengle

For some time now, Senator Bill Frist has been pushing the Republican Senate majority toward adoption of the so-called "nuclear option."

The nuclear option refers to "a seldom-used, complicated and highly controversial parliamentary maneuver in which Republicans could seek a ruling from the chamber's presiding officer, presumably Vice President Cheney, that filibusters against judicial nominees are unconstitutional" (Washington Post, 12/13/04).

At this point, only a 51 vote simple majority would be required to uphold the ruling - as opposed to the normal 67 votes needed to change Senate rules or the 60 votes needed to break a filibuster.

In short, the current Republican majority could force the "nuclear option" ruling, and then uphold it themselves, and then abuse the unlimited power it guarantees them (at least until 2006) to do, more or less, whatever they want until the tides shift and they no longer have a majority. The measure would require no bipartisan support and would give the Republican majority carte blanche to confirm judges who would otherwise have very little chance of confirmation.

While this sounds very political and complicated and irrelevant to the lives of everyday Americans, it is not. Adoption of the nuclear option has, potentially, very far reaching consequences.

Just this week, Supreme Court Chief Justice William Rehnquist was readmitted to the hospital. Several months ago, Rehnquist was hospitalized and diagnosed with thyroid cancer, and has been very ill since. His retirement (or, less savory, death) is imminent. When Rehnquist leaves, which will almost certainly (barring a miraculous recovery) be fairly soon, George W. Bush will be in the unique position to nominate a replacement justice.

According to the Washington Post, lawyers and former administration officials who have spoken about such a nomination with West Wing aides say that Bush is headed toward nominating a "strong ideological conservative" to replace Rehnquist.

Without the filibuster option, which leaves a small amount of power in the hands of the Senate minority, the majority will have complete control over the next lifetime Supreme Court Justice.

It is very convenient that Frist is trying to railroad the Democratic minority at this particular point in time. With a very ill Justice and Presidential aspirations for 2008, Senator Frist seems to be trying to appease cultural conservatives who might otherwise choose an even more conservative candidate for the Republican nomination.

Let me explain a little more clearly.

If Frist is successful getting a nuclear option ruling, the Republican majority will be able to confirm a very conservative judge to the Supreme Court to replace Rehnquist. Once there is a strong conservative majority on the court, then conservatives have a much better shot than they have had in the past at getting Roe v. Wade turned over. If Frist is the architect who builds this house, he'll have a strong foundation to stand on in the Republican primaries for the 2008 Presidential election. He'll have a better connection to the socially conservative base that has become a strong component of the Republican Party.

Yesterday, the Supreme Court rejected an appeal to reinstate an Idaho law which would require parental consent for women under the age of 18 to receive abortion services except under the most dire of circumstances. The law's narrow interpretation of "emergency" abortions made the law very risky to young women who need immediate medical assistance, and was thus ruled unconstitutional. The lower court considered the law unconstitutional on the basis that it flew in the face of Roe v. Wade and made little sense in light of the fact that young people can be given a wide variety of other emergency medical services without parental consent.

With an ideologically conservative majority in the Supreme Court, rulings based on precedent and constitutionality will become a thing of the past. Rulings will be based on conservative political leanings and possibly religious persuasions rather than straightforward interpretation of the law, as it is written.

It is vitally important for pro-choice Americans to be very aware of the nuclear option possibility, because it has the potential to change reproductive rights for millions of American women for a great many years, regardless of who ends up in the White House in 2008 and regardless of whether the Republicans maintain a majority in the Senate past 2006.

Sometimes we ignore what we see as "politics as usual" in Washington because it all sounds so abstract and the effect on all of us as citizens is clouded by pretentious language and complicated rhetoric. Average Americans have been excluded from the political process, and we accept that exclusion because half the time we can't understand what these guys on the Hill are talking about anyway.

Well, this time the "guys on the Hill" are making a play they hope you won't understand. They are couching the nuclear option in complicated language and trying to keep you away by making it all sound as boring as possible.

Don't take the bait.

Katherine Brengle is a 23-year old writer, college student, peace activist, and host of the Bristol County Democracy for America Meetup. She can be reached at

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