The President’s Action on Immigration

As I research and write what amounts to a bi-weekly column on my deeply held concerns about the state of Israel, under the collective heading “I Am A Jew,” I think it is appropriate for a short time out, to focus on another pressing issue, namely the gridlock in the Congress.

The President’s action on immigration, taken out of absolute frustration with the inability of Congress to deal with the needs of the nation, made me address this issue with a short Letter to the Editor of The Record, a North Jersey daily newspaper. I chose The Record because my frustration with the New York Times has reached the breaking point. Getting a letter printed in that storied paper is like winning the lottery, with the odds being similar.

While the New York Times has an average circulation of 1,865,318 The Record has a daily circulation of 138,904 and a Sunday circulation of 167,278 and it is growing. It is better to reach a potential readership of 167,278, than to strive for the moon, and reach no one.

My Letter to the Editor of The Record, which appeared in last Sunday’s edition,  is set forth below:

Regarding “Obama calls for ‘accountability’ ” (Page A-1, Nov. 21):

The president’s action on immigration reminds us once again that gridlock has become the norm in Congress.

An immigration bill passed the Senate on a bipartisan vote, and a vote count in the House showed that it would have passed if it had been put up for a vote.  But the Republican Speaker, John Boehner, refused to allow a vote.

We have a similar situation in the Senate, where numerous House bills have died without being put to a vote because the Democratic Majority Leader, Harry Reid, wants to protect members of his caucus from having to cast votes that might be politically difficult. 

This puts far too much power in the hands of single individuals, and quite possibly, is a greater cause for gridlock that even the infamous filibuster.

The Constitution did not intend one party leader in either chamber to exercise veto power over legislation. I strongly urge that the Congress pass rules that require an up or down vote on any legislation passed by the other chamber.

The American people should demand it. 

Emil Scheller 

Fort Lee, Nov. 21 

Comments are welcome and will be published with attribution unless anonymity is requested. 

The 2010 election

There is every reason for Republican optimism and Democratic caution. Realistically Democrats have a two-year window to enact their programs and to modernize America. Two years to bring the economy out of its doldrums, or at least make the country feel that success in just around the corner. If they do not come into the 2010 Congressional election with the country feeling great confidence in the incumbents, they may want a change and a Republican landslide is possible.

But even if Obama is as popular as he is now, or even more so, and even if Democrats keep all the trends that have favored them in the last two years, they will be facing severe obstacles in holding their gains, not to speak of adding to them.

It must be understood that Democratic successes have depended on certain demographic groups who have turned out in large numbers for them, particularly in the last election. These groups are the young, African-Americans, Hispanics, and the poor, who have not historically voted in large numbers. It is safe to assume that in an off-year election they will be voting in lesser numbers, and Republicans and their allies are doing all they can to suppress this vote. Since these are the primary, or at least a crucial component of the Democratic coalition, their voting in lesser number represents a significant danger to Democratic successes.

In addition Democratic successes in past elections pose their own dangers, for as they won in swing states and in swing districts, it became the Democrats who became more vulnerable to losses in close elections. In addition, there is less and less low hanging fruit to be picked up, since the districts most likely to swing Democratic, are already in their column.

Finally, Democrats will be up against a historical pattern. Almost invariably the Presidents party loses seats in the election immediately following the Presidents ascension, and this appears to be true even when the President is popular, his popularity affecting only the degree of the losses. Thus following Eisenhower’s victory in 1952, and with Eisenhower having a popularity rating of 59%, Republicans lost 18 House seats in 1954. Kennedy was elected in 1960, had a popularity rating of 68% and Democrats lost two House seats in the following election. After Johnson’s victory in 1964, and with a low standing in popularity of 46%, Democrats lost a whopping 47 seats. Following Nixon’s election, Republicans, two years later, lost 12 seats. After Carter’s election, Democrats lost 15 seats, and following Reagan’s election his party lost 27 seats, though at that point Reagan’s popularity was down to 43%. Two years after the first Bush was elected, in 1990 Republicans lost 8 seats, but after Clinton’s victory in 1992, Democrats two years later, in 1994, not only lost 54 House seats, but lost control of both Houses of Congress, leaving them in the minority until 2006. George W. Bush was the first President since FDR to see his party gain seats during the first mid-term election following his own election two years earlier, but this was after 9/11 and with his popularity at 62%.

This is graphically summarized in a graph courtesy of the National Committee for an Effective Congress:



Thus if history is a guide, and it might not be, Obama only has two years to enact his long range programs, before loss of Congress, or at least reduced majorities make overcoming determined filibusters, all but impossible.

There is therefore great urgency in enacting the Presidents program, and even now with not quite enough votes to overcome a filibuster against a united and determined Republican minority, the obstacles are obvious, if not entirely insurmountable.

There are striking and worrisome parallels between 1994 and 2010. In 1994 Democrats controlled the Presidency and both Houses of Congress. Presidential coattails enabled Democrats to win seats in historically Republican districts. Similarly, Democrats have far fewer election targets in 2010 than Republicans, much as they did in 1994. An analysis shows that there are as many as 60 potentially vulnerable Democrats in the House in 2010. With the present lineup being 255 Democrats and 178 Republicans, a 60 vote swing would give Republicans 238 seats and Democrats 195 ceding control to Republicans. Of course vulnerable doesn’t mean a lost seat and if we assume a loss of half of the vulnerable seats, Dems would have 225 seats and Republicans 208, keeping a reduced but still workable majority for the Democrats.

REASON FOR DEMOCRATIC OPTIMISM

The 1994 parallel is far from full proof, as not every electoral indicator favors the Republicans. First, in 1994, 22 of the seats gained by Republicans stemmed from Democratic retirements in competitive districts. So far in this cycle, only one Democrat from a competitive district, New Hampshire's Congressman Paul Hodes has indicated that he will vacate his seat in 2010. Hodes is seeking the Senate seat in New Hampshire. However, it is too early in the cycle to draw any conclusions about future retirements. Conversely, speculation suggests that several Republican incumbents, frustrated by minority status, could retire between now and Election Day.

Second, Barack Obama is off to a far more auspicious beginning than Bill Clinton was in 1993. That assumption must be tempered by the unclear economic climate. A slip in Obama's approval rating due to the continued problems in the economy could raise the likelihood of the Democrats losing a significant number of seats. As I have pointed out, the incumbent President's approval rating going into a midterm election can have a huge effect on his party's fortunes. If President Obama can maintain an approval rating above 60 percent, he can help mitigate some of the potential losses and maybe turn them into gains.

Third, regional dynamics that are no longer in place today helped produce the Republican take over in 1994. For example, about half the districts lost by Democrats in 1994 were located in the South, in Border States, or in the rural West. Republican success in these regions continued through the 2004 election, but those trends have waned and partially reversed since 2006. Presently there are far fewer Democratic targets in those regions for the Republicans to unseat.

Conversely, from a regional standpoint, the Republicans have sustained a meltdown in the East, with no immediate end in sight. With the loss of Chris Shays seat in Connecticut in 2008, the Republicans have zero seats in all of New England. They have also sustained further losses in the West, which is sure to gain seats after the next census. Evidence of a potential Republican comeback will be scrutinized in 2009 gubernatorial contests both New Jersey and Virginia. Previously, these off year elections have been useful indicators for the mood of the electorate heading into the midterm campaign. In 2005 Democrats won the gubernatorial races in both of these states, which served as a precursor to the huge gains seen by Democrats in 2006. No Republican has won a gubernatorial election in either state in the 21st century.

In the Senate, and this could change quickly, it looks promising, and since this is where filibusters must be overcome, doing well is particularly important. Based on available polls a reasonable outlook would give Democrats a net gain of three seats, more than enough to prevent filibusters. This assumes pickups of five seats and two losses, with the pickups projected in the following four states: Florida, Missouri New Hampshire and Pennsylvania and one from the following two states: North Carolina or Ohio. Pennsylvania may have been considered doubtful, but with Sen. Specter defection to the Democratic Party, it is safe to assume he will win re-election as a Democrat. Here it is interesting to note that North Carolina is listed in the doubtful column despite the fact that according to Newsweek’s April 27, 2009 issue, incumbent Republican Senator Jim Bunning has an approval rating of 28%.

Losses are expected in Delaware and in one of the following two states: Colorado or Connecticut.

It appears that the outlook for Democrats is cloudy, with the sun peeking from behind the clouds.

A Final Summing Up

It is seven days until the election. All the polls suggest a close election in the popular vote, but a landslide in the Electoral College. The polls are also encouraging in terms of numbers of seats to be picked up by Democrats, but Republicans have far from given up. They have tried so many tacks until now; they have tried lies, smears, McCarthyite guilt by association and now according to the Huffington Post even a distribution of a leaflet telling Democrats in Virginia that voting for them has been moved to Wednesday, November 5th.

After eight years of redistributing wealth upward to the top 2% of the electorate and nationalizing the banking system, they try to scare voters by charging that Obama will redistribute wealth from working Americans to a bunch of loafers, knowing full well none of this is true. They have seized on Obama’s promise to lower taxes for 95% of taxpayers when only 62% of households pay any income taxes. http://einshalom.com/archives/985 and they claim that this means that the remainder would actually get subsidies. What they are talking about sounds like a radical new scheme but it in fact is well imbedded in our tax code. It is called the earned income tax credit. It is such a radical idea that it was enacted during the Republican Administration of Richard Nixon and was supported by that apostle of the free markets Milton Friedman. The current credit has been expanded three times--once in 1986 during the Reagan Administration, again in 1993 under George Bush I, and again in 2001 in the Clinton Administration.

The idea of another expansion in an Obama Administration is hardly a radical idea but these naysayers try to make it appear so. Of course non-earners are not eligible because people without an income have no basis to file tax returns so this is not welfare for non-workers but an aid to the working poor.

They know that what Obama is talking about is reversing the trend of Americans working longer and harder with less and less reward for their labors. Since under Obama taxes will go down for all who make under $200,000 it is ludicrous to tell people at McCain rallies that they will be targeted, unless of course McCain has managed to assemble people at his rallies who make over $200,000. That may be true at his fundraisers, but it is unlikely at rallies of tens of thousands.

They also misrepresent the impact and the cost of the Obama tax plan a compared to the McCain one. The Washington Post has made a comparison. I set it forth below:

“According to a new analysis by the Tax Policy Center, a joint project of the Urban Institute and the Brookings Institution, Democrat Barack Obama and Republican John McCain are both proposing tax plans that would result in cuts for most American families. Obama's plan gives the biggest cuts to those who make the least, while McCain would give the largest cuts to the very wealthy. For the approximately 147,000 families that make up the top 0.1 percent of the income scale, the difference between the two plans is stark. While McCain offers a $269,364 tax cut, Obama would raise their taxes, on average, by $701,885 - a difference of nearly $1 million.”

The Washington Post has tables that illustrate the enormous differences. They are worth studying closely.

As can be seen, McCain’s plan, like Bush’s, gives more and more to the wealthiest while Obama gives relief to the vast majority of the non rich Americans.

Even more interesting is the cost to the treasury of the respective plans. According to the Tax Policy Center while “both candidates have at times stressed fiscal responsibility, their specific non-health tax proposals would reduce tax revenues by $3.6 trillion (McCain) and $2.7 trillion (Obama) over the next 10 years, or approximately 10 and 7 percent of the revenues scheduled for collection under current law, respectively. Furthermore, as in the case of President Bush's tax cuts, the true cost of McCain's policies may be masked by phase-ins and sunsets (scheduled expiration dates) that reduce the estimated revenue costs. If his policies were fully phased in and permanent, the ten-year cost would rise to $4.0 trillion, or about 11 percent of total revenues.

Thus as can be evident McCain’s plans are more expensive and favor the rich. Haven’t we had enough of these kinds of policies?

Not surprisingly as more and more voters understand the priorities of the candidates they are flocking to Obama and the Democrats in the House and the Senate.

But now in the closing days of the campaign we hear the final plea. We must not allow Democrats to win a victory that would actually be big enough to allow them to govern. During this past Congress, when Democrats after years in the wilderness, finally achieved a Majority Republicans made it a matter of party policy to routinely filibuster almost all bills put forth by Democrats. The media has given the impression that it is a Senate requirement that 60 votes are needed to pass legislation in the Senate but that is far from true. Until now filibusters were relatively rare and were used primarily to block civil rights legislation. Now, however, there have been 72 motions to stop filibusters so far in this first year of the 110th Congress. Compare this to 68 such motions in the full two years of the previous Congress, 53 in 1987-88, and 23 in 1977-78. In 1967-68, there were 5 such votes, one of them on a plan to amend cloture itself, which failed.

This is a deliberate calculated successful attempt to prevent the majority from doing the peoples business. It is deliberate action to enforce gridlock. And then during the campaign the have the nerve to denounce the Congress for getting nothing done.

The opposite is true. Democrats must be given large enough majorities to govern. If they have the power, responsibility will go with it. Gridlock cannot solve the recession, or the financial crisis or the health care crisis or any of the other problems that Democrats will inherit.

If we want our problems addressed we must not only get a new hand on the tiller we must have a captain with a crew so that they can steer the ship of state.

Inequities In Our Electoral System - Part II

In my June 23 commentary, which can be found here, I discussed how the Constitution mandates a Senate in which the votes of some have far more weight than those of others. I pointed out that each voter or potential voter in Wyoming has his/her vote counted 69 times for each time a Californian voter gets his/her vote counted. I also pointed out that while the House has a better balance, a vote by a resident of Wyoming has almost twice the value of one in Montana.

The comments I received from Robert Malchman, Esq. and Leonard Levenson, Esq. tended to defend the present system even including the filibuster on the ground that these are checks and balances that prevent a temporary majority from running roughshod over a minority. There comments may be sound in theory, but in fact it has made Congress to a large extent impotent so that the President has become increasingly a power center with few effective checks. Furthermore, while theoretically it encourages compromise, the compromises that come out of the present system undermine the objectives of the majority and I believe the American people. Thus to get an increase in the minimum wage Democrats had to agree to undesirable tax cuts. On Iraq they were blocked by filibuster from even getting a bill voted on protecting our soldiers from excessive deployments, and any bill having timetables suffered a similar fate. If Democrats do not get at least a 60 vote majority in the Senate in the next election, and the unfairness of the electoral system, as discussed, makes this extremely difficult, it will be essentially impossible to pass Health Insurance legislation through the Senate, without agreeing to provisions that would undermine it.

But the unfairness of our elections does not stop in its Constitutional morass. It is controlled to a large extent by what has come to be called gerrymandering. Theoretically the voters are the arbiters of election results. But in fact the elections have traditionally been greatly dominated by the way congressional districts are laid out, known as gerrymandering.

To some extent the Supreme Court tried to limit this abuse, e.g. In Grey vs. Sanders, (1963) The Court in an 8 to 1 decision said, "How then can one person be given twice or ten times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote - whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of `we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions."

While this decision is well founded in logic it has not had the effect of stopping gerrymandering with legislators finding increasingly ingenious ways to get around the court decision, and of course the court does not have the power to correct the inequities that are enshrined in the Constitution.

But we need not stop there. For reasons that are hard to fathom the US is one of the few democratic countries in the world where elections do not depend on getting a majority of the vote. A plurality is all that is needed. Thus, if there are numerous candidates for particular position the one with the largest vote count wins. Multiple candidates are not uncommon in races at the local level as well as in primaries even for the Presidency of the US. Thus, e.g. Pat Buchanan won the New Hampshire primary in 1996 with 27% of the vote. There is no provision for run-off elections, as there is in most democratic countries and the result is that third party candidates can be decisive even in Presidential elections.

In our history we have had 16 Presidents elected with less than a majority of the popular vote, usually due to a third party candidate being on the ballot, but even more important is that various states give all their electors to one of the candidates who has not achieved a majority. In the 2000 election 8 states gave all their electoral votes to a candidate who did not get a majority of the vote. Thus in Florida the popular vote split 48% to 48% in the final official tally, Iowa’s tally was 49% to 48%, Maine 44% to 49%, Minnesota 46% to 48%, New Hampshire 48% 47%, New Mexico 48% to 48%, Oregon 47% to 47%, Wisconsin 48% to 48%, and the National vote split 47.87% to 48.38%. Thus where there is a third party candidate in the offing our system does not ask who their second choice would have been, as is true almost everywhere else in the world and to correct this the electoral college would not have to be abolished. We would only need a law that would require a majority to win the electoral votes of any state. No run-of would be required if the ballot where structured to allow the voters to list their second choice. This would also allow third party candidates to run without the spoiler effect, since voters inclined to vote for such a candidate, would know that their votes would not go to waste. It would give voters a chance to express their unhappiness with both candidates and still make sure that the greater of the evils is not elected. At the same time it would enable more voters to choose a third party candidate without having to worry about wasting their vote.

If an interstate compact among states were to be adopted under which state legislatures agree to appoint electors supporting the winner of the national vote, I would still advocate for a system where no President could be elected without gaining a majority of the popular vote. This would require the compact to also call for ballots that allow for voters to vote for their second choice, or it could be dealt with separately through an Act of Congress.

But I would not be satisfied with reform in the Presidential election. I would strongly advocate for a reform in the election of candidates for the Senate and the House and even in state elections by majorities rather than pluralities. Here too laws would have to be enacted allowing voters to set forth their second choice.

I will expand further on this topic, including the all-important aspect of the role of money in American politics, in a future commentary.

Inequities In Our Electoral System

As I look back on the elections over the past decades I am increasingly struck with how undemocratic our elections are. To a large extent this is imbedded in our Constitution, though the framers thereof had no way of knowing the extent to which this system would create a totally undemocratic outcome. Of course at the time the Constitution was drafted and ratified there were only thirteen states. There were undoubtedly variations in the sizes of their population but the discrepancies were small compared to what exists today. Article 5 of the Constitution provides for the manner of amending the Constitution, but then goes on to say, “Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” The first portion of this applies to protecting slavery and the second apparently was a necessary compromise for any of the thirteen states, which were afraid of losing representation. But what has happened as a result of this compromise?

We now have a situation where California the state with the largest population, has a population according to the 2007 census of 36,553,215. The state with the smallest population, Wyoming, has a population of 522,830 but both states are entitles to two senators in the US Senate. This is the equivalent of each voter or potential voter in Wyoming having his/her vote counted 69 times for each time a Californian voter gets his/her vote counted, or to put it another way, each voter in Wyoming can vote 69 times. If we were to put it this way the outrageous unfairness of this would be apparent, but little if any attention is paid to this crime against Democracy.

Well, the Senate was intended to equalize the states rather than people and the House is supposed to be the “People’s House.” But even the House, where the inequality of voters is not as great it is in the Senate, comes out with inequality because the Constitution mandates that every state shall have at least one Representative. Thus Wyoming with a population of 522, 830, has one representative in the House while Montana with a population of 957, 861 has one representative as well, or put it another way, a vote by a resident of Wyoming has almost twice the value of one in Montana. And carrying this to its logical or absurd conclusion, which ever the reader may prefer, if there were to be a major outflow of population from one state, or if some multi-billionaire were to buy all the land in one small state and evict the tenants from his/her property, he/she alone could legally appoint two Senators and one Representative and could cast three electoral votes for President.

This in fact happened in Great Britain. Allow me to quote from Wikipedia, “The term 'rotten borough' referred to a parliamentary borough or constituency in Great Britain and Ireland which had a very small population and was "controlled" and used by a patron to exercise undue and unrepresentative influence within parliament. Such boroughs existed for centuries, although the term rotten borough only came into usage in the 18th century. Typically rotten boroughs were boroughs which once had been flourishing cities with substantial population, but which had deteriorated, declined and become deserted over the centuries (see abandoned village).

“The true rotten borough was a borough of an extraordinarily small electorate. A similar type of corrupt constituency was the pocket borough — a borough constituency with a small enough electorate to be under the effective control (or in the pocket) of a major landowner.

For many years, constituencies did not change to reflect population shifts, and in some places the number of electors became so few that they could be bribed. A member of Parliament for one borough might represent only a few people (or even just one — the buyer), whereas cities which had become important, such as Manchester, had no separate representation at all (eligible city residents were, however, able to vote in the corresponding county constituency; Lancashire county for Manchester).”

But when we get to the Electoral College the unfairness becomes more pronounced again and lies somewhere between the Senate and the House. Wyoming again comes out as the most favored state. It need only 174,277 votes per electoral vote, while in Texas 703,070 votes are needed per electoral vote. To put it another way, anyone living in Wyoming gets to vote four times for everyone who votes in Texas.

Then to make things even worse we have the system where all the electoral votes of any state shall go to the winner, so that in a state that is closely divided, every vote counts and the candidates devote much time and money courting voters in that state. But if a state should be predictably in the column of one party or the other, then individual votes don’t count, because the margin of victory is irrelevant. This means that closely divided states get the attention of the candidates, and the interests of those states are paid close attention by the candidates, but one party states can be ignored. They simply don’t count in the outcome of the election. The election will be decided by what is called “swing states.”

The Filibuster and The Nuclear Option

There has been much in the media about the filibuster regarding judicial nominations and the desirability or lack thereof with regard to judicial nominations. I believe this misses the crucial point. On this point both sides are insincere.

Historically, Republicans have favored the filibuster and Democrats have opposed it. Therefor there are both being at least inconsistent in their present positions, if not actually hypocritical.

A more important point, however is at stake which is not being widely discussed. Senate Rules say that debate can only be halted by 60 votes. Republicans want to change this as to confirmation of judges only. That is their right! But it is their right to do it only within the procedures of the Senate which provides:

RULE 43
Suspending and Amending Rules
Any Rule of the Senate or severable portion of a rule of the Senate may be suspended by unanimous consent of the Senate. Without unanimous consent one day's previous notice shall be given of a motion to suspend any of the rules or severable portion thereof. A motion to suspend shall require a vote of two-thirds (2/3) of the membership of the Senate.

Any permanent amendment, rescission, or repeal of any of the Senate rules shall require a two-thirds (2/3) vote of the total membership of the Senate. However, from the convening of the 2006 legislative session through the second Thursday of the 2006 legislative session, any permanent amendment, rescission, or repeal of any of the Senate rules may be made by adoption of a Senate Resolution that has been referred to and has received a favorable report from the Rules Committee.

The Clerk of the Senate shall have these rules recorded in a permanent book which shall be kept at all times in the Senate Chamber. All permanent changes in the rules after they have been adopted shall be recorded in a Permanent Rule Book and certified by the Clerk of the Senate. These rules shall remain in full force and effect until the conclusion of the terms for Senators or until the Rules are amended, suspended, or repealed by a vote of two-thirds (2/3) of the membership of the Senate prior thereto.

Last Updated: 1/12/05 4:27 PM

Then how can the Republican majority change the rules by majority vote? The answer is by a sham interpretation of the rules by the Vice-President followed by a sham upholding of a ruling by a majority of the Senate.

RULE 7 A.
Question of Order
Appeal from President's Decision

If a Senator in speaking, or otherwise, violates the Rules of the Senate, the presiding officer shall, or any member may, by raising a point of order, call him to order; and when a member is called to order by the President or under a point of order, he or she shall sit down and may not proceed without leave of the Senate, unless the President takes the point of order under advisement. The President may call for the Sense of the Senate on any question of order. Every question of order must be decided by the President, without debate, and Senators shall have the right to appeal the decisions of the President to the full Senate. When the decision of the President is appealed, the President Pro Tempore or his or her designee shall preside and the President shall retire from the chamber during the pendency of the appeal and the Senate's debate and action on the motion to appeal. The question before the Senate shall be "Shall the ruling of the President be overridden?" and after not more than thirty (30) minutes, fifteen (15) minutes for and fifteen (15) minutes against, of debate it shall be decided by a majority vote of the membership.

This of-course assumes that the ruling of the chair shall be made in good faith. But in this case the ruling would fly in the face of the clear rules of the Senate and therefor would be a violation of law and ethics. It is hard to believe that there are not five Republicans who believe in the Rule of Law and are willing to stand up to uphold that rule of law. To do otherwise is to open a Pandora's box. Also the VP has said that he would vote to break a tie. Since he must retire from the chamber it is hard to see how he could do that within the rules but it appears that no rules and no laws are any longer binding upon this runaway Republican majority.

Here is what two former Republican Senators writing in the Wall Street Journal had to say on the subject. What follows is an excerpt:

THE WALL STREET JOURNAL
Don't Go Nuclear
By Jim McClure and Malcolm Wallop 
15 March 2005 

The United States Senate is heading toward a crisis of sorts over the Democratic minority's use of extended debate to prevent votes on many of President Bush's most important judicial nominations. Together -- and as Republicans -- we served a combined 36 years in the Senate. We are no strangers to the filibuster and, in the past, did not hesitate to employ or to support that instrument on extraordinary occasions. .... it does not call for what is being referred to as a "nuclear option" from the Senate majority leader.

Over the past year, that "option" has been variously, and vaguely, defined. In his opening remarks to the Senate on Jan. 4, however, Sen. Bill Frist made things suddenly clear. Read carefully: "I reserve the right to propose amendments to Senate Rule XXII [concerning extended debate] and do not acquiesce to carrying over all the rules from the last Congress." The first clause is innocuous; every senator has the right to propose rules changes. But the second clause is dynamite, capable of blowing out the foundations of the Senate itself. It means the majority leader will eventually propose, against history and common sense, that the Senate is not a "continuing body." Or, to be precise, a continuing body with continuing rules, for there is the heart of the matter.

Some of the public may need to be reminded that, when the 109th Congress convened in January, only about one-third of the Senate was sworn in, namely, those members elected or re-elected last November. The other two-thirds of the membership did not stop being senators after last year's adjournment, and they did not mysteriously lose the body of rules and precedents under which the Senate operates from year to year and, ultimately, from generation to generation.

Sen. Frist's carefully crafted remarks suggest an intention to ignore all that by implying that his acquiescence is needed to "carry over all the rules from the last Congress." Without those rules, how does the Senate decide anything? How does it change the rules? How does it cut off a judicial filibuster? By simple majority vote...

All this -- in effect, turning the Senate into a high-end version of the House of Representatives -- is too high a price to pay in order to stop Senate Democrats' abuse of the filibuster on judicial nominations. It is disheartening to think that those entrusted with the Senate's history and future would consider damaging it in this manner. The alternate "nuclear" strategies under discussion are also problematic. A Constitutional point of order, for example, would, according to Senate tradition, be referred to the full Senate, where it is debatable (i.e., filibusterable). The only other option is for the chairman to rule, without citing the Constitution, that judicial nominations cannot be filibustered. That course would have no basis in either law or Senate rules. (emphasis added)

At this point, no one knows how the "nuclear option" drama will play out, but we would respectfully offer to senators, both Republican and Democratic, a bit of back-country wisdom: When you find a bear in your cabin, it's not smart to try to burn him out.

Messrs. McClure and Wallop, Republicans, are former senators from Idaho and Wyoming, respectively.