Frist Filibuster Flip-Flop Vote Uncertain

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Senate Majority Leader Bill Frist (search) wants to change the way the Senate ends debate on nominees in order to jumpstart confirmations of some of President Bush's long-stalled judicial picks.

However, when a vote may come on the plan is anybody's guess.

Frist, R-Tenn., has proposed a resolution that would gradually reduce the number of votes needed for the Senate to reach cloture -- or limit discussion -- from 60 to 51 during debate on nominations. Saying the rules need to change with the times, Frist said that "a problem has emerged and there is an announced threat it will spread."

"If we do not fix it now, filibustering (search) nominations will become a new Senate tradition," Frist said last month.

But Democrats say the system isn't broken so it shouldn't be fixed, and some congressional experts agree that changing the rules will be a laborious process.

"In the Senate, usually you need a supermajority to get most anything done -- it's hard to do things by a strict party line vote unless your party has a strong majority," said Don Ritchie, associate Senate historian. "It gets frustrating and the Senate is a frustrating institution when people are looking for ways to revise the rules."

Democrats have so far successfully blocked confirmation of two of Bush's federal court nominees -- Miguel Estrada (search) and Priscilla Owen (search), using the filibuster. On Wednesday, Senate Judiciary Committee Republicans pushed through the nomination of Alabama Attorney General Bill Pryor for an appeals court seat.

Democrats are considering a filibuster against Pryor's nomination. Panel member Charles Schumer, D-N.Y., said the Republicans' forcing the nomination through the committee made it easier for Democrats to justify a filibuster.

That's just what the Committee for Justice -- established to promote the president's court picks -- wants to hear.

Though the group says allowing the judicial nomination process to be hijacked "is an incredibly dangerous precedent," executive director Sean Rushton said that Democratic filibusters may help the GOP in the long run.

"We think it's important to give the Democrats every opportunity possible to publicly obstruct, because we think that, over the long term, that's a negative for them and their party," Rushton said. "We would like to see as many filibusters accumulate on judicial nominees this summer as possible."

With two, and now possibly three, nominees facing an intractable situation on the floor, the Republican-led Senate Rules Committee approved Frist's resolution last month. But getting it to the floor may be a problem.

"It is undetermined yet as to when it will move on to the floor," Frist spokesman Nick Smith told "We are continuing to talk with other members from both parties to gain support."

Frist needs unanimous consent by senators to bring debate to the floor. If anyone objects, that would launch another likely filibuster to avoid a vote on the resolution.

In order to beat that filibuster, Frist would need three-fifths of the Senate -- or 60 votes -- to end debate, just as he would on an attempt to end debate on the nominees. But even if Frist got those 60 votes, the rules change would require two-thirds, or 67 votes, more than the simple majority that would be needed for a vote on the nominees.

Senate Minority Leader Tom Daschle has said he doesn't think the votes are there even to support debate.

"Our feelings are that it's completely unnecessary and it's little more than a political stunt," said Daschle spokesman Joe Trahern. "Sen. Daschle feels there's no reason to fix a system that isn't broken."

Many Republicans have also said they are uncertain about supporting a rule change, fearing that it may come back to haunt them when they're ever again in the minority.

Analysts say Frist could employ the so-called "nuclear option," in which the GOP invokes the right of the majority to determine the Senate rules and asks the chamber's chair to call for a simple majority vote to end the filibuster on judicial nominees.

The nuclear option is a heavy-handed tactic that has rarely been used. Democrats employed it successfully in 1975, when they wanted to reduce the number of votes needed for cloture from two-thirds to three-fifths of the Senate.

"It's not a minor option -- it could be a very disruptive option," Ritchie said. "The leadership would have to weigh whether that's the option they want to take."

By using the nuclear option, Republicans could end up stalling other items on the legislative to-do list, such as Medicare (search) reform.

"I think the consensus is, if and when one of those gets put forward … it could substantively shut down the Senate," Rushton said. But, he added, lawmakers shouldn't fear using that option. Instead, they should "make sure it happens at a time that makes sense."