The Answer Is in the Works

Byron York writes in National Review Online With the Senate reconvening on Capitol Hill, and Majority Leader Bill Frist preparing to use the "nuclear option" — or the "constitutional option" or "Byrd option," as it is also known — to end the standoff over Democratic filibusters, the outlines of a possible compromise solution are beginning to take shape.

My preference would be for Frist to go ahead and do it

It's not the quick-and-dirty fix, recently floated in the press, in which both sides would exchange a few nominees and call it a day, with no real change in the way the Senate works. Republicans genuinely, and deeply, believe that Democrats have abused the system by their unprecedented filibusters of an entire slate of judicial nominees. To use the phrase heard most often in discussions with them, Republicans want to "fix the problem going forward," that is, to break through not only today's stalemate but prevent future ones.

Absolutely

What would a deal look like?.... Based on conversations with three well-connected Republicans — call them Republicans A, B, and C — it appears that the solution might lie in a combination of the two offers. Frist's 100-hour proposal is a substantial deal. While it would end filibusters, it would mean that Democrats could still effectively block some nominees. "Senate floor time is very precious," says Republican A. "If you have a lot of guaranteed debate time, then effectively leadership will not be able to bring forward every nominee if the minority insists on going through every procedure that is there. If [Democrats] said, 'We want 100 hours on all of them,'" then realistically all of them would not come up." Privately, some Republicans indicate that they are willing to negotiate further on this point. For example, if Democrats wanted more time, say 120 hours, for each nomination, then "I'm sure we would have that conversation," says Republican A.

That would be ok, as long as they make the debate run 24 hours a day continuously, like in a true filibuster.

More importantly, some in the GOP appear willing to abandon the position that all Bush nominees must have an up-or-down vote — if that would ensure that future nominees would not face filibusters. "If you had to sacrifice a couple of nominees," says Republican B, "so that you could save the courts and preserve the principle from now on, it's not like these are the only conservative nominees in the world."

"Who cares about these individual nominees?" adds Republican A. "You care about the process going forward. Frist isn't in this to protect Janice Rogers Brown or Priscilla Owen. He wants to fix this and have a system that works for both sides going forward."... Some Republicans believe there is the possibility of a deal by negotiating the time of debate and the fate of current nominees. Frist has to walk away with a deal in which no one would be allowed to filibuster judicial nominees. And Reid has to have a deal in which Democrats can walk away with some scalps and still retain the ability to block some nominees.

It is entirely possible that neither side will budge and Frist will end the filibusters with the nuclear/constitutional/Byrd option. But the process is not at that point yet.

Paul @PowerLine blogged It's difficult for me to see the Democrats giving up the right to filibuster President Bush's Supreme Court nominees, though. I would think that the liberal special interest groups would rather see the Dems go down fighting (if it comes to that) than to give away the ability to block future appointees, no matter how conservative, in exchange for the scalps of a few current nominees.