Now, don't get me wrong, I want the filibuster to survive and I think the nominees in question -- especially Priscilla Owen and Janice Rogers Brown -- deserve to be kept off the bench using whatever means we have at our disposal.
However, I'm not sure that we're correct to argue that the nuclear option is an illegitimate method of eliminating the filibuster on judicial nominees.
I'll explain why on the flip.
Basically, it boils down to a straightforward question of constitutional interpretation. Before I get there, let me lay the groundwork. Through the nuclear option, Majority Leader Bill Frist will attempt to change
Senate Rule XXII, which provides that debate may continue unless 3/5 of the Senate votes in favor of ending it. The exact mechanism Frist intends to use is unclear; the general assumption seems to be that he will ask the Chair (presumably Cheney) whether judicial filibusters are constitutional, and Cheney will say "no." While
that approach strikes me as problematic, a second possibility might be legitimate.
The second approach is for Frist to straightforwardly make a motion to amend Rule XXII, asking that the "magic number" be brought down to a simple majority (or a simple majority in the case of debate over presidental nominees, depending on whether Frist wants to continue the so-called "legislative filibuster"). The oft-cited reason for why this tactic would be wholly illegitimate is that Frist would need to get 2/3 of the Senate on his side in order to change the Rule. While this is technically accurate, it isn't true (as far as I can tell) that 2/3 of the Senate must vote in favor of a rule change for it to become operative; instead, cloture on a debate over a rule change requires a 2/3 supermajority, in contrast to the ordinary 3/5 requirement. That is, Rule XXII itself gives birth to the requirement that 2/3 of the Senate support a rule change. In fact, Armando's recent front page post cites Rule XXII for this very proposition. Here is the relevant passage:
Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:
"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
OK, so far so good. But how is Frist going to make this work, you ask? After all, he doesn't have 2/3 support for this; if he did, he could just invoke cloture according to Rule XXII, and that would be that. True enough. Here's where the Constitution comes in. Article I, § 5, cl. 2 provides:
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Now, it is a fundamental rule of constitutional interpretation that, at least when dealing with the same clause, that expressio unius est exclusio alterius. In this case, what I mean is that by requiring a 2/3 supermajority to expel a member, the Constitution implicitly does not require such a supermajority to 1) make rules or 2) punish members (short of expulsion). The Constitution's rule when it comes to the Senate's rulemaking power, then, is that a simple majority of the Senate is allowed to set the Senate's Rules.
What does any of this have to do with Frist? Quite a lot. Senate Rule V provides that "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." This rule, apparently based on the notion of the Senate as a continuing body, is really the only thing that prevents Frist (or anyone else) from changing the cloture rule via a majority vote (because the second half of Rule XXII, which de facto requires 2/3 of the Senate to support a rule change, remained in effect when this "new" Senate went into session in January of this year).
However, if my reading of the Constitution is correct, then the portion of Rule XXII that requires a 2/3 vote to cut off debate on a rule change is quite likely unconstitutional, given that the Constitution provides that a simple majority of the Senate "may determine the Rules of its Proceedings." At the very least, under the Constitution, each new Senate has to have an opportunity, when it first goes into session, to change the rules by simple majority vote. Frist, on the very first day the Senate was in session, reserved the right to challenge Rule XXII. Unless there is some reason why such a reservation ought not preserve Frist's ability to challenge the Rule, with the ability to change it via majority vote, then a "nuclear" strategy in which Frist attacks not the constitutionality of the filibuster, but instead just attempts to change the Rule, is not illegitimate.