The Constitutional Option Explained

Today, the Senate begins an historic debate aimed at ending the Democrats’ unprecedented obstruction of the President’s judicial nominees. The central question is simple: should judicial nominees have fair up-or-down votes on the Senate floor? But the procedure the Senate will likely use to decide this question is not quite as simple. The following is a step-by-step preview of the likely Senate procedure.

This afternoon, at the direction of Majority Leader Bill Frist, the Senate will begin to consider the nomination of either California Supreme Court Justice Janice Rogers Brown or Texas Supreme Court Justice Priscilla Owen. Both have been nominated to federal appeals courts. Both are being filibustered, or denied votes, on the Senate floor.

Perhaps as soon as Friday, Majority Leader Frist will have the Senate vote on a motion to end the debate on whichever filibustered nominee is being considered. This motion, called invoking “cloture” in Senate speak, requires 60 votes to pass. If it passes, which is considered very unlikely, the Senate would hold a simple up-or-down vote on whether or not to confirm the nomination. A majority prevails.

If the motion fails, the debate will continue.

After allowing the discussion to go on for an additional extended period of time -- perhaps even a few more days -- Majority Leader Frist could raise a “point of order” and say that debate had gone on long enough and that opponents of the nominee are only continuing the debate in order to avoid a final vote. Frist would then ask the Senate’s presiding officer to decide whether or not this is the case. Because the U.S. Constitution names the Vice President of the United States as the presiding officer of the Senate, Vice President Cheney will likely be responsible for ruling on Frist’s question.

Assuming that the Vice President agrees with Senator Frist, Mr. Cheney would rule that a final vote on the nominee must occur within a set period of time.

Under parliamentary rules, the Democrats could try to appeal Vice President Cheney’s decision to the full Senate. However, Senator Frist would ask the Senate to reject this appeal by making a motion to “table” it.

Critically, Senator Frist’s motion to table is not debatable under the rules, which means that a majority, or 51 votes, will be enough for Senator Frist to prevail. (If the motion were “debatable,” it would require 60 votes for Senator Frist to prevail.)

The entire issue will be settled on this crucial vote. If Senator Frist can get 51 votes in favor of his motion to table, the Senate will, almost immediately, hold a simple up-or-down vote on the judicial nomination then being considered. In addition, under Senate rules, Vice President Cheney’s ruling that debate on judicial nominees should be limited will become a binding precedent that will apply to future Senate deliberations on judicial nominations. That means that Senators won’t be allowed to filibuster future judicial nominations, guaranteeing simple up-or-down votes once their confirmations reach the Senate floor. Filibusters of legislation would be preserved.

If Senator Frist’s motion to table is defeated, he will be unable to overcome the Democrats’ filibuster, and a minority of Senators will have effectively defeated the nomination.

Remember, there are 55 Republican Senators. Majority Leader Frist will need 51 votes in favor of his motion, and if only 50 Senators vote in favor, Vice President Cheney can cast a tie-breaking vote in favor of the motion.

But with all of the Democrats expected to vote against Senator Frist’s motion, if even six Republicans join the Democrats and vote “no,” the obstruction will continue. Even now, several Republicans are undecided. Some have even said they will vote “no.”

If you want to make your voice heard and ask these Republicans to overcome the obstruction and hold up-or-down votes on the President’s judicial nominees, click here.

For more information on specific Senate procedure and the history of the Constitutional Option, please see this outstanding article by Senate experts Martin B. Gold and Dimple Gupta. (350kb .pdf)