A recipe for democracy: how the Senate will go "nuclear"
In an essay for the Washington Post in which he argues against ending filibusters of judicial nominations, blogger Kevin Drum gets this wrong:
In other words, if Democrats don't play ball, [Majority Leader Bill] Frist reserves the right to invoke the "nuclear option": a parliamentary ruling that eliminates judicial filibusters by fiat, without a vote of the Senate.
The Senate will vote. But rather than voting directly on a change in Senate rules, which would require a supermajority to prevail, here's how will it happen, if it happens.
When the Democrats begin filibustering a judicial nomination, a Republican member -- presumably, Sen. Frist -- will rise to make a point of order, namely that the filibustering of judicial nominations is unconstitutional. The chair -- normally a freshman Republican senator, but on this occasion Vice President Cheney, who is president of the Senate -- will agree that such a filibuster is unconstitutional and rule it out of order. That's the "nuke."
A Democrat member -- presumably Sen. Reid, the minority leader -- will appeal from the decision of the chair. The question will then be put to the senators, "Should the decision of the chair be sustained?" A decision of the chair is sustained if a simple majority of the senators vote to sustain it.
The Republicans can't muster the supermajority needed to change the Senate rules to end filibusters of judicial nominations. But they can muster the simple majority needed to uphold a decision of the chair. It's a parliamentary maneuver, made possible by one party holding a majority of the Senate seats and the White House.
But, contrary to what Kevin Drum wrote, the Senate will vote.