Friday, May 13, 2005 | 5:50 a.m.
WEEKEND EDITION
May 14 - 15, 2005
WASHINGTON -- A long-anticipated final battle likely will be waged this week if Senate party generals Harry Reid, D-Nev., and Bill Frist, R-Tenn., have truly reached an impasse over judicial nominations.
Senate observers expect Frist will invoke the so-called "nuclear option," a procedural maneuver that would allow Republicans to halt Democratic filibusters with a simple 51-vote majority -- as opposed to the current 60 votes needed -- in order to call for up-or-down votes on President Bush's nominees.
The stakes are high. Democrats say the nuclear option will change the Senate forever by stripping the minority of a vital protection and leaving it at the mercy of the majority. As Republicans see it, they are merely reacting to Democrats bucking history in the last Congress by unfairly blocking judicial nominees.
In a Sun interview last week, a gloomy Reid said the nuclear option would render the powerful, more deliberative upper chamber of Congress merely an extension of the House of Representatives. That change would last "for the rest of the country's history," Reid said.
"Might as well do away with the Senate," the 19-year Senate veteran said. "We'll be of no meaning to anybody. I guess it would be a second legislative body. We wouldn't be the saucer that cools the coffee, as one of our founding fathers said."
Some experts downplay the effect the nuclear option might have on the business of Congress. But others say the nuclear option will change the tenor and day-to-day business of the Senate, perhaps even leaving it in a state of "partisan Armageddon," as one observer put it.
After the fallout, then what?
For Reid, in his first year as Democratic leader, the job of charting his party's course would change dramatically. To begin with, he'll spend more time on the Senate floor to "protect the rights" of Democrats, Reid said.
Reid likely will spend less time politely working out Senate agendas with Frist, he said, and their relationship will suffer.
"I'm sure it won't be as good as it is now," he said.
In general, Reid is vowing to slow the Republican agenda while at the same time trying to refocus the Senate's attention on Democratic priorities.
Reid could employ procedural tricks of his own, such as refusing to consent to vote on bundles of minor legislation in one package, forcing time-consuming roll call votes on each one, aides said. Another option: refusing a Republican request to recess for the day.
Reid also will rely on Senate procedural rule 14 that allows Democrats to call for votes on nine Democratic bills dubbed "Promise of America."
The bills include legislation designed to reduce unwanted pregnancies and increase women's health care; require pay-as-you-go congressional spending; increase benefits for veterans; and decrease gas prices by stopping the diversion of oil from markets to the strategic petroleum reserve.
The move is designed in large part to force the Republicans to vote down bills that Democrats say are important to voters.
"The traditions of the Senate are that the minority defers to the majority in setting the agenda," Reid said. "That's the way it's been for 200-plus years. If the Republicans are going to abolish tradition with their nuclear option, we have no obligation to defer to them. We won't do that anymore. We will set our own agenda."
Frist has called Reid's plans to slow Senate business "irresponsible and partisan."
Last week, Frist reasserted the fundamental reason that the party was willing to use the nuclear option: Republicans believe that all nominees -- even the most controversial -- deserve up-or-down votes, he said.
"When you have a nominee that comes over, all you can do is shine the light, you examine him, unlimited debate," Frist said on the Senate floor. "And then to give advice and consent -- which is in that Constitution. How do you do it? Vote yes, no. Confirm, reject."
Sen. John Ensign, R-Nev., said Democrats aiming to slow Senate business "do so at their own peril."
"The Democrats paid a price for obstructionism in the last few elections," Ensign said. "And I think they will do so again."
Ensign called the seven controversial judges who sparked the nuclear option controversy "some of the best jurists we have in the country."
"It really is an issue of fairness and going back to the Constitution, and what had been a tradition of getting up or down votes on judges," Ensign said.
Reid has said Democrats will not stall legislation pertaining to national security and government functions -- including the 13 spending bills Congress annually approves for federal government agencies and services.
But experts generally agree the Senate will be a very different place if the nuclear option is used.
The genial nature of the Senate would be tarnished -- likely for years -- and some formal courtesies of the Senate might be discarded, experts said. For example, Democrats could at times opt to scrap the efficient system in which senators of both parties routinely enter into "unanimous consent" agreements on daily business items big and small.
It would be "monumentally tragic," if the nuclear option were invoked, said Thomas Mann, a senior governance studies fellow at the Brookings Institution, a Washington research and policy think tank. In the long term, it strips the minority of a fundamental protection from being ruled by a simple majority, Mann said. In the short term, it intensifies bitterness and distrust, he said.
Both parties will seek to minimize political fallout, but politically Republicans may fare worse, he said.
"Americans don't like concentrations of power," he said.
Reid's challenge will be to persuade the nation that the Republicans have damaged the fabric of American democracy, Mann said.
But Reid and the Democrats are vulnerable to criticism that they are obstructionist "naysayers" if they move to slow the Senate, said James Thurber, director of the Center for Congressional and Presidential Studies at American University.
In the long-term, the nuclear option would affect both parties in that it would forever change the Senate's function as a more deliberative counter to the House, he said.
"As an institution, the Senate acts like a pillow -- it absorbs the extremes in the House and moderates them," Thurber said. "If you don't have that function, you can't moderate as much."
It's also possible that doomsday predictions may be hype, experts said.
The Senate in general may not change all that much, said Steven Smith, director of the Weidenbaum Center on the Economy, Government and Public Policy at Washington University in St. Louis.
Reid may ratchet up his rhetoric and make things harder for the Republican leadership, but he may choose to pick his battles in a kind of "selective obstructionism" rather than significantly clog up the works, Smith said.
"They (Democrats) set themselves up for the question: Are you obstructing this just for retaliation for (the nuclear option)? And what is the Democrats' answer? They have to be careful not to look like spoilsports," Smith said.
The Senate veered into this confrontation in part because "the stars aligned" for the Republicans when they took control of both chambers of Congress and the White House, Smith said. But both parties have behaved quite predictably, he said. Majority parties have always asserted their power as the minority seeks to protect its rights, he said.
"That's the history of the Senate in a nutshell," Smith said.
Republicans stand to win the battle over judicial nominees but lose the war if Democrats slow the rest of their agenda, University of Nevada, Reno political science professor Eric Herzik said. Republicans this year won early victories on their bankruptcy and tort reform bills, which Democrats generally opposed but did not filibuster, Herzik noted.
"Reid has worked pretty hard with a liberal base to reach across the aisle," Herzik said. "That will be almost impossible to do if the nuclear option is used."
The situation is dangerous for both Democrats and Republicans, Herzik said.
"The voters could throw up their hands and say, 'This is what we don't like about government,'th" Herzik said.
If voters would really prefer collegial partisan politics, they would be comfortable at the weekly breakfasts hosted in the Capitol by Reid and Ensign for visiting Nevadans.
The two laughed and lightly poked fun at each other Thursday morning, as they typically do. But they also acknowledged that their well-publicized friendly relationship is not indicative of the current mood in the Senate.
"As you can probably tell," Ensign told a group of more than 100 Nevada guests, "that's something that's pretty rare around here these days."
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