Reply #91: Senate rules: the nuclear option would involve a constitutional challenge

[gottaB]

In a nutshell:

Frist could launch the nuclear option on the Senate floor, aides say, by contending a filibuster of judicial nominees violates the constitutional directive for senatorial "advice and consent" on such appointments. The presiding officer -- probably Vice President Cheney -- would agree, and a Democratic challenge to his ruling would be subject to a simple majority vote, not a filibuster, under Senate rules.

If five Republicans joined a solid bloc of Democrats, Cheney could break the 50-50 tie in favor of banning judicial filibusters. If a sixth Republican defected, Frist would fall short.

http://www.washingtonpost.com/wp-dyn/articles/A12517-2005Jan15.html