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May 24, 2005

Nukular Options and the Ministry of Truth

Now that we've settled the judicial filibuster issue once and for all (hah...) it's time to ask the questions: Where did the phrase "nuclear option" come from? How did it come to get used in the Senate debates over judicial nominees? There has been some controversy over this, because it sounds patently ridiculous, completely over the top, and somewhat unhinged. It's a debate over a senate procedural rule, fergoshsakes.

So, where'd it come from? The conventional wisdom, oft-repeated in the media, is that it came from Republican senators discussing methods of dealing with the nomination of U.S. District Court Judge Pickering for an appellate seat.

To find out, I hit up the Nexis database. I ran a search for ("senate" and "republican" and "judicial" and "nuclear option") in the "allnews" database. The results that came back, were interesting.

What I discovered is that for political purposes, the term was invented by CNN analysts, and perhaps Long Island Newsday, to describe a facet of the 2000 election controversy. As CNN’s talking heads put it, if the presidential election had gone into the House of Representatives for resolution, as per the Constitution, that would have represented “the Nuclear Option.” How odious. It’s like describing the House’s debate over whether to cut certain programs pursuant to its spending power under the Constitution (“Article I Power”) as “the Felony Murder Option.” If it’s not a cheap trick by the media or some political rival, it would be an exceedingly stupid way to discuss a cause one espouses.

The term was used repeatedly by talking heads to describe electoral politics, but if I ran my search correctly (and please keep in mind this wasn’t an encyclopedic study), the first reference to its use in the judicial controversy was in a March 15, 2002 Chicago Tribune article. According to that article,

Still, some Republicans have raised the possibility of what they call the "nuclear" option--retaliating for Pickering's defeat by stalling Senate business.

Threat from Republican

"The feelings are running so deep on these issues, that that may well happen," said Sen. Arlen Specter (R-Pa.). "Any one of us can tie the Senate in knots."

Hmmmm… so maybe Senator Lott didn’t invent the senatorial usage of this insanely stupid phrase, perhaps it was that most moderate of moderates, a man so moderate and so close to the center that it’s possible that he doesn’t actually hold any beliefs, but is merely comprised of the averaged, normed, & meaned beliefs of all other human beings who ever lived. Yep, good ol’ Arlen Specter. Maybe it wasn’t him, but the way he accedes to the Trib’s question, it sure looks like he was using the term. And to be fair to Senator Specter, he may not have coined it. After all, we're told that conservative attorneys are all part of a "Constitution in Exile Movement," a secret society so sinister that only liberals ever use the term. So I thought that maybe this was another invention.

But wait, it gets better when you see the whole article, as if the last revelation doesn’t have you sitting on the edge of your seat. I’m afraid I have to post the whole article here. I think it’s fair use, you'll see why at the end, but please Bigwig, if we get notice from the Trib for copyright issues, please pull it right away and make it very clear that Kehaar stole my login and wrote this entry fraudulently. He’s in some foreign country or soon will be, so he’ll be safe from the law, and we’ll be safe from him. Meanwhile Kehaar, if a guy who looks like "Dog" from that A&E show about a bounty hunter shows up at your door with some papers, pretend you died on your sofa watching TV.

Anyhow, keep in mind this is a March 15, 2002 article, and make double damn sure you read to the end.

Copyright 2002 Chicago Tribune Company
Chicago Tribune

March 15, 2002 Friday
Correction Appended
North Sports Final Edition
LENGTH: 802 words
HEADLINE: Senate Democrats reject judge, place Bush on notice
BYLINE: By Naftali Bendavid, Washington Bureau.

After a bitter fight replete with accusations and name-calling, the Senate Judiciary Committee on Thursday rejected the nomination of Charles Pickering, handing President Bush his first defeat of a judicial candidate and setting the stage for other bruising nomination battles.

Bush had lobbied hard for Senate approval of the Mississippian, but Democrats prevailed 10-9 on party lines, arguing that Pickering regularly lets his conservative beliefs take precedence over the law. Pickering is a federal judge, and Bush was seeking to elevate him to the 5th Circuit Court of Appeals.

"Judge Pickering has a disturbing habit of injecting his own personal opinions about the civil rights laws into his opinions," said Sen. Russell Feingold (D-Wis.).

The vote suggested that despite Bush's popularity, Democrats will be willing to vote down his nominees if they are controversial enough. Throughout the process, Bush and other Republicans have portrayed Democrats as beholden to special interests and destroying a good man's reputation.

Pickering is a friend of Senate Minority Leader Trent Lott (R-Miss.), and Republicans twice delayed the committee's vote in an attempt to rally support.

Bush reacted with frustration to the outcome.

"The action of the Senate Judiciary Committee to refuse Judge Pickering a vote by the full Senate leaves another empty seat in the federal judiciary at a time when we face a vacancy crisis," Bush said.

In one sense, the vote was merely the latest chapter in a pitched partisan battle over judicial nominees. For six years under President Bill Clinton, Democrats grew upset at what they saw as Republican stalling of Clinton's nominees.

The vote was also a test of wills for future nominations, including those to the Supreme Court.

"It is definitely not a comforting sign for what lies ahead for Circuit Court nominees, let alone Supreme Court nominees," said Sen. Orrin Hatch (R-Utah), the committee's top Republican.

Republicans could still try to force Pickering's nomination to the floor for a vote by the Senate, where he would be far more likely to win than in the polarized Judiciary Committee. This appears unlikely.

Still, some Republicans have raised the possibility of what they call the "nuclear" option--retaliating for Pickering's defeat by stalling Senate business.

Threat from Republican

"The feelings are running so deep on these issues, that that may well happen," said Sen. Arlen Specter (R-Pa.). "Any one of us can tie the Senate in knots."

It was evident throughout the hearing that Democrats and Republicans are convinced the other party has been grossly unfair to its judicial nominees.

Drastically different views of Pickering also emerged. Opponents cited an article he wrote four decades ago suggesting ways to strengthen Mississippi's law against interracial marriage, and they said that as a state senator he voted to fund the notoriously segregationist Sovereignty Commission.

Pickering's supporters painted a different image. They said he had been a progressive in 1960s Mississippi, noting that he testified against a grand wizard of the Ku Klux Klan and more recently has acted to foster racial reconciliation.

Senators also debated the significance of the fact that Pickering had been overruled by an appeals court 26 times in his 12-year term on the bench.

Hatch said Pickering was reversed fewer times than the average judge is.

Senators at the hearing focused also on liberal groups like Alliance for Justice and People for the American Way, which had worked hard to defeat the nominee.

"Judge Pickering has been viciously attacked by leftist, liberal groups," said Sen. Charles Grassley (R-Iowa). "He has been called a sexist, a racist, a bigot, and unfortunately, the Democratic Party has been more than willing to do the bidding of these groups."

Democrats cite right to oppose

Democrats countered that these groups had a right to express their views. They focused instead on Republican tactics during the Clinton years, when they said the GOP refused to even hold hearings for many nominees.

Sen. Charles Schumer (D-N.Y.) said Bush has adopted a strategy of appointing highly ideological judges, honoring his campaign promise to appoint jurists in the mold of Supreme Court Justices Antonin Scalia and Clarence Thomas.

"The administration is willing to take some casualties in this fight," Schumer said. "They are sending up waves of Scalias and Thomases. If a couple of controversial nominees get shot down, it's a small price to pay because they still win, they still stack the courts."

Some observers wondered why Bush would spend political capital on such a controversial nominee. Standing up for Pickering risks alienating minority voters, whom Bush has tried hard to court, but it could prove him to a more fundamental Bush constituency, religious conservatives.


Clarification added May 2, 2005.

Democrats and Republicans have used the term "nuclear option" to describe a change to the Senate rules that would require only a simple 51-vote majority to end a filibuster. Current rules require 60 votes to cut off unlimited debate that typically has been used to stop legislation and block presidential nominations strongly opposed by a minority. While it is unclear which party first used the term in relation to Senate procedures, Republicans used it at least as early as 2002 to describe their possible retaliation against Senate Democrats who then controlled that body and blocked President Bush's nomination of Judge Charles Pickering to the federal appellate court.

Holy Freakin' Winston Smith's Ministry of Truth, Batman!

It's possible Republicans were using this term prior to the article. But a three years after-the-fact controversy-snuffing correction, from an MSM outlet?

I'm a little shocked.

Posted by Blackavar at May 24, 2005 11:36 PM | TrackBack
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It came from Trent Lott.

Posted by: meg at May 25, 2005 02:12 PM

Right Meg. Everybody says that - as received wisdom goes, it's practically solomonic in its stature. But there's no particular evidence of that having happened. This interspersing of the term, followed by an assertion from Specter of "yep, that's what we might do," is the first reference I found.

I may be conservative and trust received wisdom generally, but I damn sure read as many source documents as I can.

So while Trent Lott may be a negro hatin' neo confederate lovin', pork shovelin' plastic hair havin' unprincipled sumbitch, I can't say for certain that he invented the term. And in fact, it looks to me like it might be another media neologism, kind of like the Constitution in Exile Movement, a vast right wing legal conspiracy invented out of whole cloth based on a throwaway quote by one conservative judge in one book review in 1995.

Posted by: Blackavar at May 25, 2005 06:07 PM
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