Okay everyone. Get ready. With all this Pope business firmly behind us, the press will be looking for the next big story to dissect to death from every angle. The pundits will be out in full force (including me). The next big story (which will begin Sunday) will be that of Senate Majority Leader Bill Frist, invoking the Nuclear Option. From Wikipedia:

The “nuclear option,” as used in American politics circa 2005, is a catchprase referring to a political manuever that would allow the Senate majority (currently Republicans) to prevent the minority party (currently Democrats) from filibustering judicial nominees. By U.S. Law, certain judicial appointees, particularly Supreme or other federal court Justices, must be confirmed by the U.S. Senate before taking the bench. Under current Senate rules, a minority of senators are able to prevent the confirmation of judges via filibuster unless a supermajority can be reached to ‘break’ the filibuster. The ‘nuclear option’ refers to the technicality that only a simple majority is necessary to change this rule. That is, although a supermajority is currently necessary to break the filibuster, a simple majority could alter the Senate rules so that only a simple majority would be required to break the filibuster. The term is often used derogatorily by Democrats because of the term’s bad connection with nuclear war.

The primary argument forwarded by Republicans in defense of invoking the nuclear option and ending filibusters was a legal argument written by Martin B. Gold and a moonlighting 26 year old Justice Department attorney, Dimple Gupta.

To make it as succinct as possible (and there really is no fair way to do so), Gold and Gupta point out that according to the law the majority HAS THE CONSTITUTIONAL OPTION to change the rules.

Conservative columnist Bob Novak writes in the Chicago Sun-Times about the so-called “constitutional option,” discussed by Gold and Gupta. Specifically he paraphrases their argument to explain that in the past the Democrats have also subverted minority rights while in power:

In January, the Harvard Journal of Law & Public Policy published an account by two Washington lawyers, Martin B. Gold and Dimple Gupta, of what they called the ”constitutional option.” For more than a century, the Senate frequently resorted to parliamentary tactics to impose majority rule — most recently by Bob Byrd.

Byrd, who entered political life as a Ku Klux Klan member, in the ’60s was a conservative Democrat, and was delighted when Richard Nixon listed him as a possible Supreme Court nominee. Byrd’s next role was as the hard-driving majority leader rolling over liberal dissenters. He since has taken a rapid trip to the left, with the radical MoveOn.org raising big money for his 2006 re-election.

Gold and Gupta cited four instances where Byrd had amended Senate rules with majority votes. Byrd ignored this report for two months until Republican Sen. Orrin Hatch on March 10 went on the Senate floor to discuss the four cases. It took 10 more days for Byrd to respond to Gold, Gupta and Hatch by denying the past: “Their claims are false … they are dead wrong. Dead wrong.”

The DailyKos however, lays out a great case for why this example should not apply as justification to invoke the Nuclear Option in the coming week. If interested in this topic I strongly urge you to read this whole argument, but here is the concluding paragraph:

Are you getting the point? Good, because I’m tired of letting Gold and Gupta make it for you. The “constitutionality” of the “constitutional option” appears to rest on the Senate’s alleged “right” to adopt new rules for itself under general parliamentary procedure at… the beginning of a new Congress. Which is, of course, not where we are today, and therefore, why the Senate’s “constitutional rights” are neither the actual theoretical basis of the nuclear option, nor likely to be addressed in Frist’s point of order or what will likely be Cheney’s baseless ruling in it.

As I understand it, the basic argument here is that rule changes should only occur at the beginning of the game (i.e. congressional session) and shouldn’t be changed in the middle when things aren’t going the way of the majority.

People for the American Way summarizes the argument against the Nuclear Option here. They include steps you can take to hopefully have influence on the outcome if you believe its worthwhile to fight this possibility. Also Newsweek has a terrific article by Howard Fineman on how this will affect the 2008 Presidential election. After all, the ENTIRE reason we are even having this discussion is because it pertains directly to the 2008 election.

You know what would be really cool? If Dimple Gupta is Sepia Mutiny reader and will weigh in on this for us.

I can hope… :)