Nicholas F. Benton

Will Cheney Go Nuclear?

The countdown to nuclear holocaust begins today, and it will all take place in the U.S. Senate.

The very nature of the U.S. Senate is being threatened by a Bush administration willing to torpedo over 200 years of U.S. Constitutional tradition in order to ramrod through the appointment of the worst of his right-wing judicial nominees.

Today, the first of these, William Myers III, comes before the Senate Judiciary Committee as a nominee for the U.S. Court of Appeals, the second highest court in the land. Myers, a former lobbyist for the mining and ranching industries demonstrated at a hearing last week that he is an anti-environmental extremist. He has written that all habitat conservation laws are unconstitutional because they interfere with potential profit.
Democrats in the U.S. Senate had no problem confirming the vast majority of judicial nominees brought forth by Bush in his first term. There were only 20 among over 200 that the Democrats could not stomach, those with arch-extremist views, like Myers.

For those 20, Democrats reverted to the Senate's time-worn tradition of the filibuster, just as Republican Senators did to block the confirmation of Clinton nominees and as Senators from both parties have done back to the founding of the nation.

But now the Bush administration has decided it will not accept the Senate's rejection by filibuster of his 20 extremists, and with the beginning of its second term, has re-submitted them all.

While undoubtedly lacking the 60 votes in the Senate required to end a filibuster, the Bush administration has another option for ramming through its beloved 20, and it is lovingly called the "nuclear option."

That's because it will have the effect of a nuclear bomb going off in the Senate. It will trigger a level of chaos and disintegration never seen before in that august body.

But the option exists. It has for a long time, but it has almost never, except in a handful of very specific cases with extenuating circumstances, been invoked. Very few have been sufficiently irresponsible or indifferent to the role of the U.S. Senate in this democracy to exploit it for partisan purposes. But it is in keeping with the degenerate character of this administration that it very well might try.

The option gives the President of the Senate the technical prerogative to rule Senate rules out of order. That is, he can override the rule requiring 60 votes to close a debate with one that says only a simple majority will do.

Vice President Cheney, therefore, as President of the Senate, might do just this when the judicial nominees come to the floor for a confirmation vote of the full Senate.

The wisest counsels in both parties have cautioned against the extreme danger in reverting to such a move. They are calling on Bush to confer with Senate leaders of both parties to find an alternative, even if it means withdrawing the names of his these nominees.

It is not at all clear, for example, that any of the more moderate Republicans will go along with a scheme to decimate the Senate for the sake of appointing a few right-wing crackpots to the judicial bench. At some point, even they might draw the line.

The eloquent Sen. Robert C. Byrd (D-WVa) unleashed a firestorm of controversy last week when he equated a possible recourse to the "nuclear option" to the legislative actions of Hitler in Nazi Germany. The reference caused many predictable howls, but almost no adequate news coverage of what he was actually trying to say.
Byrd prefaced his remarks about Hitler with a lengthy discourse on the role of the Senate in the U.S. Constitutional system. It was never intended, he explained, to be a body governed my majority rule. Set up with two members per state, regardless of the size of the states, it is intended to be "the forum of the states."

Unlike the House, "the Senate is intended for deliberation, not point scoring. The Senate is a place designed, from its inception, as expressive of minority views...Unfettered debate, the right to be heard at length, is the means by which we perpetuate the equality of the states...The Senate was deliberately conceived to be a...guardian of the rights of the minority. The Senate is the watchdog because majorities can be wrong and filibusters can highlight injustices," Byrd explained.

It is in this context that Byrd noted a keen insight by Hitler scholar Alan Bullock. Hitler's dictatorship rested on the constitutional foundation of a single law, the Enabling Law, Bullock had noted. "Hitler's originality lay in his realization that effective revolutions, in modern conditions, are carried out with, and not against, the power of the state...Hitler never abandoned the cloak of legality. He recognized the enormous psychological value of having the law on his side. Instead, he turned the law inside out and made illegality legal," Byrd cited Bullock.

It seems the similarities between invoking the "nuclear option" in this case and Hitler's M.O. are entirely plausible and well worth noting.

Nicholas F. Benton may be emailed here.