Number 19: Frist Falters?

May 24, 2005


Senate Majority Leader Bill Frist and right-wing conservatives suffered a major defeat last night when a bipartisan group of 14 senators struck a deal to defuse the nuclear option. In reaching this deal, these senators rejected Frist’s core argument that the judicial filibuster is unconstitutional. The compromise recognizes the right of senators to filibuster judicial nominees in extraordinary circumstances and two Bush nominees – William G. Myers III of Idaho and Henry Saad of Michigan – will probably be withdrawn or subject to filibuster. Conservatives declared this compromise a defeat, and while this agreement has its downsides – the probable confirmations of Judges Pryor, Owens and Rogers Brown – it is a victory for those who want to preserve the filibuster and traditions of the Senate.

This agreement assures that the nuclear option will not be invoked in the 109th Congress. In the agreement reached, the senators vowed not to invoke a rules change in this Congress. Section IIB of the compromise states: "In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress.” Section IIA makes clear that senators maintain their commitment to the agreement as long as they only filibuster in "extraordinary circumstances," a determination to be based on their "own discretion and judgment."


Conservatives have declared this compromise a defeat. James Dobson – who helped lead the charge for the nuclear option as chairman of Focus on the Family – called the compromise a crushing defeat and “betrayal by a cabal of Republicans.” Gary Bauer, president of the right-wing American Values, said that Republicans who supported the compromise have “undercut their President as well as millions of their most loyal voters.”


The compromise calls on the White House to once again actively consult the Senate on judicial nominees. During prior administrations of both parties, the White House routinely consulted with both Republican and Democratic senators. The compromise reached last night calls for the president to consult with members of both parties prior to submitting nominations to federal courts. This step – which is consistent with the requirement that the Senate not just consent but "advise" on judicial nominees – could significantly reduce the partisanship and acrimony that plagues the process.

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