Talk About Your Nuclear Options

What do you think would happen if the GOP took this advice on confirming judicial nominees (from The Wall Street Journal):

The Byrd Option--II
He says the Senate doesn't have to vote on judges, so the GOP should mail it in.

Sunday, April 3, 2005 12:01 a.m. EST

Robert Byrd is an expert on Senate rules and procedures, on which he has written a four-volume history. So we paid notice when a friend called our attention to the West Virginia Democrat's latest pronouncement on the confirmation of President Bush's judicial nominees.

Shortly before Congress recessed for Easter vacation, here's what the Senator said on Fox's "Hannity & Colmes": "The President is all wrong when he maintains that a nominee should have an up-or-down vote. The Constitution doesn't say that. The Constitution doesn't say that that nominee shall have any vote at all. There doesn't have to even be a vote."

As the Senator says, Article II of the Constitution is silent on how the Senate shall exercise its "advice and consent" power in confirming judicial nominees. For more than 200 years, however, that body has interpreted the Founders' injunction to mean that a simple majority of Senators--51 in our age--must vote to confirm. That's why we cried foul in President Bush's first term when Democrats filibustered 10 appeals-court nominees, thereby denying them an up-or-down vote on the floor--even though every candidate had the support of a bipartisan majority. A vote to end a filibuster requires a super-majority of 60 Senators.

But now that Senator Byrd has expressed the view that the Senate doesn't have to vote at all, here's a better idea for ending the impasse over judicial nominations: Fifty-one of the 55 Republican Senators can simply send the President a letter expressing their support for his candidates. Under Mr. Byrd's Constitutional analysis, the Senate will have exercised "advice and consent" and the judges will be confirmed.

Do you think Byrd would even remember he said this if it was brought to his attention? Harry Reid, Chuckie Schumer and Teddy Kennedy would would probably faint dead away if Bill Frist decided to have the GOP mail in their approvals. That would be fun to watch.