What is this Nuclear Option stuff about?
There are many international readers on this blog and, like me, they may wonder what this is all about. I will explain what I, so far, found out. Please add to it in the comments.
The narrow issue right now is the consent or non-consent of the U.S. Senate for two of President Bush’s court nominees. The wider issue goes back into the history of law interpretation and also far into the future. It is the stacking of the U.S. Supreme Court with judges that interpret the historic constitution as an absolute word, a return of the "Constitution in Exile", a voyage back to the 1880s. This could well change the United States we know today into something very strange. But that will have to be discussed in a later post.
For now just a bit on the procedures that will most probably follow in the next days and weeks.
The filibuster permits a senator, or a series of senators, to speak for as long as they wish and on any topic they choose. This can be and has been used to hold up a piece of legislation or Presidential nominee.
A filibuster can be stopped when three-fifths of the Senate (usually 60 senators) vote for the cloture of the debate. The legislation or nominee in question can then be decided on by a simple majority.
These procedures are regulated in the Rules of the Senate which them self according to these rules can only be changed by a two third majority of the voting senators. The republicans plan to circumvent these rules by calling them unconstitutional. The dark force itself, Vice-president Cheney in his legislative role as President of the Senate, will play an important part in this constitutional tragedy.
A Likely Script for The ‘Nuclear Option’ (WaPo) explains the steps and the timing of what may follow today’s discussion in the Senate. The legality of these procedures is questionable but, at least to my understanding, it is open who exactly is to decide on this legality.
A good explanation of the context of the issue by Yale professor Bruce Ackerman was published in the Financial Times a few days ago and a copy can be found at The Washington Note. He is especially annoyed by the double role Cheney is playing in this.
Mr Cheney’s role in destroying the moderating role of the Senate is particularly problematic. For two centuries, the Senate president has been the pre-eminent guardian of the rules. Thomas Jefferson first put them in writing when he served as vice-president. His aim was to prevent political manipulation by the presiding officer, and Senate presidents have consistently served as impartial arbiters. In breaking with this tradition, Mr Cheney has a clear conflict of interests. As president of the Senate, he owes the institution fidelity to its rules, but as vice-president to Mr Bush, he wants to see his boss’s judicial nominations confirmed. By allowing his executive interest to trump his duty to the Senate, Mr Cheney is undercutting the separation of powers.