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How the Crybaby Option will work

With so much talk about the Nuclear Option and how Republicans are back using their Speech Police tactics, a very important concept is being ignored (or marginalized) by a large amount of media. What is being marginalized is that the Nuclear Option is an extra-legislative process in which one Man changes Senate Rules, where a supermajority (2/3rds) is actually required. Again: Senate Rules themselves will be broken using the Nuclear Option. Whatever your views on the Filibuster, breaking rules and precedent in order to win is wrong.

First, to understand how this will all play out, it is important to see how the Constitution and Senate operate. The Constitution calls for the Senate to give "advise and consent" to all judicial nominations from the Executive Branch. How the Senate accomplishes this is not prescribed by the Constitution; rather this is up to the Senate, in the form of Senate Rules, how to proceed. These rules are agreed upon at the beginning of each legislative session by a supermajority (2/3rds) vote. The filibuster itself is written into the Senate rules as Rule 22 and was adopted almost 100 years ago. This is commonly called Cloture, and is described as:

The only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes.

Senate References (emphasis added)

Republicans do not have the votes to change Senate Rules, if they did they would just vote for Cloture and be done with it. No Filibuster, no change to Senate Rules. Instead, Republicans have been searching for another way to skirt the Rules of the game in order to win. So how will Republicans and Senator Frist accomplish this? Well, there are many theories, Kagro X has a great rundown on many different theories, but it seems that the good Senator will raise a Point of Order, and then singlehandedly change the Senate Rules by fiat, bypassing the procedures and rules of the Senate.

Here is how it might go down:

1. Senator Frist brings a nomination to the Senate floor
2. Sen. Frist asks for a Cloture Vote to gauge initial support - this requires three-fifths of the Senate to pass
3. Cloture will fail
4. Senate Democrats will start discussing the nominee
5. At some point it will be obvious that Senate Democrats will filibuster (Sen. Frist might actually ask this)
6. A GOP Senator will raise a Point of Order that debate has continued long enough, that any further debate would be dilatory, and that a vote must be taken within a designated time frame
7. The Parliamentarian of the Senate will rule that a supermajority requirement to cut off debate is not in order would not be based on previous precedents of the Senate
8. The Presiding Officer (probably Vice President Cheney) ignores the Parliamentarian
9. The Presiding Officer sustains the point of order
10. A Democratic Senator will appeals the ruling of the chair (it only takes one)
11. A Republican senator makes a motion to table the appeal
12. Senate Democrats will attempt to debate the appeal
13. The Presiding Officer will rule that debate is not in order
14. The Senate votes on the motion to table the appeal, it takes a simple majority (51) to table appeal
15. Fifty senators vote to table the appeal, Vice President Cheney casts the tie-breaking vote, and the appeal is tabled
16. This sustains the ruling of the chair - debate on the nomination must end
17. Senate Rules are changed only by a majority vote not a supermajority which is needed

Note, that this chain of events will not be instantaneous - Republicans will try to highly stage-manage the affair, and Democrats will try to draw out the chain of events. It could all be done in an hour or take all day and suspend all of Senate business (and probably the House as well as they rubber-neck). Who knows, either way both sides are maneuvering to get the most positive (to their side) theatre out of this act.

As you can see, this method is nuclear because it breaks Senate Rules in multiple places: changing Senate Rules in the middle of a legislative session, overruling the Senate Parliamentarian, using a Point of Order instead of a Cloture vote to end debate, and most egregious, the Presiding Officer - most likly Cheney but Sen. Frist might preside - will himself decide this Constitutional Matter alone. Let me say this again: the Republicans will make the decision on what is right or wrong not through process or the rule of law or even the Consitution, but rather by theselves using extra-legislative powers. This is exactly like a Police Officer deciding your guilt on the street and locking you up. Or the home team deciding during the middle of a game each tuchdown counts doubl, but for them only.

This nonsense about calling this the "Constitutional Option," which Senator Frist and the GOP at large are beginning to use, is pure bull. The real Consitutinal Option is changing Senate Rules at the beginning of the legislative session with a supermajroity vote. Why, oh why, can't our media get that? Whatever your views on the Filibuster (and there has been much debate on the Left on this), the proper and Consitutional method to deal with this is through Senate Rules and proper debate. But that isn't what Frist et al are doing: they are using parliamentary tricks to weasel their way into the outcome they desire.

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