Josh Marshall on what Frist would have go down next week:
Whether you call it the ‘nuclear option’, the ‘constitutional option’ or whatever other phrase the GOP word-wizards come up with, what “it” actually is is this: the Republican caucus, along with the President of the Senate, Dick Cheney, will find that filibustering judicial nominations is in fact in violation of the constitution. (Just to be crystal clear, what the senate is about to do is not changing their rules. They are about to find that their existing rules are unconstitutional, thus getting around the established procedures by which senate rules can be changed.) Their reasoning will be that the federal constitution requires that the president makes such nominations “by and with the Advice and Consent of the Senate” and that that means an up or down vote by the full senate. Nobody believes that. Not Dick Cheney, not any member of the Republican Senate caucus.
For that to be true stands not only the simple logic of the constitution, but two hundred years of our constitutional history, on its head. You don’t even need to go into the fact that other judicial nominations have been filibustered, or that many others have been prevented from coming to a vote by invocation of various other senate rules, both formal and informal, or that almost countless numbers of presidential nominees of all kinds have simply never made it out of committee. Indeed, the whole senate committee system probably cannot withstand this novel and outlandish interpretation of the constitution, since one of its main functions is to review presidential appointees before passing them on to the full senate. Quite simply, the senate is empowered by the constitution to enact its own rules. You can think the filibuster is a terrible idea. And you may think that it should be abolished, as indeed it can be through the rules of the senate. And there are decent arguments to made on that count. But to assert that it is unconstitutional because each judge does not get an up or down vote by the entire senate you have to hold that the United States senate has been in more or less constant violation of the constitution for more than two centuries. For all the chaos and storm caused by this debate, and all that is likely to follow it, don’t forget that the all of this will be done by fifty Republican senators quite knowingly invoking a demonstrably false claim of constitutionality to achieve something they couldn’t manage by following the rules.