Mark Kleiman asks the question I’ve been mulling all day:

[A]m I the only one who finds it surprising that the unconstitutionality of the “nuclear option” hasn’t gotten more attention?

A lot of liberals do seem to be missing the point. This isn’t a subtle moral quandry about the relative importance of majoritarianism vs. deliberation. Nor is it about the merits of the judicial filibuster, per se.

In principle, the judicial filibuster could be eliminated by a simple majority vote in the Senate. However, such a vote is unlikely to happen because the proposal to change the rules would be filibustered. Nuclear options are procedural tricks designed to force a vote on the judicial filibuster without giving the opposition the opportunity to debate it. (Remember: Almost anything that can be debated can itself be filibustered.) The bottom line is that the Republicans will resort to the nuclear option because they don’t have the support to amend the rules of the Senate legitimately.

The hypocrisy of the nuclear option is staggering. The Republicans claim that they are asserting the Senate’s right to self-government by challenging the super-majority requirement for cloture on judicial nominations. The ugly truth is that the Republicans are prepared to disregard the Senate’s own (self-determined) rules in order to establish a precedent they like.

Observers predict that the nuclear strike will happen this week. The Republicans don’t have the 60 votes they need to derail a filibuster on Priscilla Owen’s judicial nomination. On Friday, Republicans moved for cloture anyway, knowing they didn’t have enough votes to force a vote on Owen.

The Washington Post speculates about what will happen when cloture is denied:

Frist aides say he has not decided exactly what would occur next. But the scenario most widely expected among senators in both parties is that he would seek a ruling from the chair — Vice President Cheney, if it looked as if the vote was going to be close — that filibustering judicial nominations is out of order. Assuming the chair agreed, Reid would then object and ask that the ruling of the chair be tabled. Most Republicans would then vote against the Democratic motion, upholding the ruling. Then the Senate would move to a vote on Owen, and a precedent will have been set that it takes 51 votes, not 60, to cut off debate on a judicial nomination.

Democratic senators could appeal his ruling. Appeals are debatable and therefore filibusterable. However, at this point, a Republican could move to table the appeal. Motions to table are not debatable. A simple majority could table the appeal. If the appeal were tabled, the chair’s ruling would stand, and a new precedent would be set.

A report prepared by the non-partisan Congressional Research Service (CRS) concluded that the nuclear option violates Senate precedents (.pdf). According to the CRS, if Cheney rules in Frist’s favor, the Vice President will violate precedent by making a unilateral ruling on a constitutional point of order. Currently, precedent requires that the entire Senate vote on such critical constitutional questions. But Cheney must disregard that precedent in order to deliver the nuclear strike. If he allowed a general vote, the Democrats could filibuster (provided they were allowed to debate the question openly). Alternatively, the CRS report suggests, Cheney might allow a general vote, but violate precedent by denying the Senate the right to debate the issue before the vote.

Perhaps the most despicable aspect of the nuclear option is its implicit disregard for the Constitution. Everyone knows that Cheney will vote in Frist’s favor. Nobody bothers to pretend that Cheney’s decision might depend upon the merits of the constitutional issue Cheney will adjudicate. Ironically, Paul Horwitz notes, Cheney may already have aired serious public doubts about his own party’s case.

Even those who don’t support the judicial filibuster should repudiate the Republicans’ underhanded tactics. Like real-life nuclear brinksmanship, the Republican nuclear option is breathtakingly irresponsible. This isn’t just about a few extremist judges, or even about Supreme Court appointments. It’s not even about preserving whatever collegiality remains in current Senate. Thanks to the nuclear option, integrity of the Senate is at stake. If the nuclear attack is successful, it will establish the principle that whichever party holds the majority in the Senate can write and rewrite the rules to suit itself. The Republicans aren’t just trying to undermine the power of the minority. The so-called “constitutional option” is a ploy to unhinge Senate proceedings from precedent and procedure. The Republicans want to allow the majority to make up the rules as it goes along.

Norman Ornstein sums it up:

Richard Beth of the Congressional Research Service, in a detailed report on the options for changing Senate procedures, refers to it with typical understatement as �€œan extraordinary proceeding at variance with established procedure.�€�

To make this happen, the Senate will have to get around the clear rules and precedents, set and regularly reaffirmed over 200 years, that allow debate on questions of constitutional interpretation–debate which itself can be filibustered. It will have to do this in a peremptory fashion, ignoring or overruling the Parliamentarian. And it will establish, beyond question, a new precedent. Namely, that whatever the Senate rules say–regardless of the view held since the Senate�€™s beginnings that it is a continuing body with continuing rules and precedents–they can be ignored or reversed at any given moment on the whim of the current majority. [Hat tip to Digby.]