It wasn't too long ago that Republicans held a U.S. Senate majority with a Republican President and Democrats were refusing to allow votes on judicial nominees.  Republicans considered using a parliamentary procedure maneuver to end the ability of Democrats to filibuster the consideration of these nominees. Some called it the "Byrd Option" because during his time as Senate Majority Leader, Sen. Robert Byrd of West Virginia pioneered the procedure to break through minority obstruction. Some called it the "Constitutional option" because the Constitution gives the Senate the role to "advise and consent" nominees by a majority, not a super majority. But the term that stuck was coined by Mississippi Sen. Trent Lott: the "nuclear option" because the reaction of the minority to its use would blow up the Senate.

Retired Fifth Circuit Court of Appeals Judge Charles Pickering faced that obstruction by Democrats and discusses the nuclear option in his book, "Supreme Chaos: The Politics of Judicial Confirmation and the Culture War."

"Democratic Minority Leader Harry Reid wrote to Majority Leader Bill Frist warning Republicans if they changed the rules, 'the Majority should not expect to receive cooperation from the Minority in the conduct of Senate business.' Senator Reid made it clear he would shut down the Senate if Republicans removed the filibuster on judicial nominations. No funding bills; no education bills; no healthcare bills; no energy bills; no homeland security bills; no military support bills: the Democrats claimed they were prepared to stop business to maintain endless debate on judicial nominees. But they were not interested in debate, only in preventing an up-or-down vote. Senator Reid said, 'If they, for whatever reason, decide to do this, it's not only wrong, they will rue the day they did it, because we will do whatever we can do to strike back. I know procedures around here. And I know that there will still be Senate business conducted. But I will, for lack of a better word, screw things up.'"

A bipartisan group of Senators who came to be known as the "Gang of 14 crafted a plan that would prevent Democratic filibusters except in "extraordinary" circumstances and allow for votes in the others.

Pickering writes, "After the deal was announced, Senators Lindsey Graham and Mike DeWine, both Republican members of the Gang of 14, expressly announced that were the Democrats to attempt a filibuster on nominees not in 'extraordinary' circumstances, they would both vote for the constitutional option. Senator Frist agreed, 'Let me be very clear. The constitutional option remains on the table. It remains an option. I will not hesitate to use it if necessary.' Democratic Senate Minority Leader Harry Reid disagreed, 'The nuclear option is gone for our lifetime. We don't have to talk about it anymore.'"

Now Democrats are in the majority with Reid as Majority Leader threatening to do what he called the "wrong" thing and use the nuclear option. It appears "gone for our lifetime" lasted only about eight years. The arguments have been reversed with Reid calling to an end of the minority check on majority power in the Senate, and Republicans howling that Reid will be remembered for destroying the nature of the Senate.

Sen. Roger Wicker of Mississippi proposed the Senate meet in closed session to discuss the matter and come to a compromise. Wicker has been vocal in opposition to one of the contentious nominees, Richard Cordray to head the Consumer Financial Protection Bureau, as well as President Barack Obama's improper use of recess appointments. Republicans and Democrats took Wicker's suggestion and the Senate met Monday night and as of Tuesday morning there was no firm deal but tensions had eased slightly. Wicker noted that if the Democrats wanted the nominees considered, that deal had already been offered on all seven disputed nominees with the Republicans reserving the right to filibuster executive nominees in the future. Reid rejected that deal, but it appears the compromise reached may be similar.

Sen. John McCain of Arizona appears to have fashioned an agreement in principle with the details of the deal yet to be worked out. It seems most of President Barack Obama's contentious nominees will receive a vote, including Cordray, but Democrats will abandon two appointees to the National Labor Relations Board. Those recess appointments were made, according to Senate Republicans and the U.S. Court of Appeals, improperly. Instead, new appointments will be considered.

So for now, the filibuster power will be maintained for our lifetime, which might mean until Republicans take the majority, or for another eight years, or for another couple of days.

The compromise is not unlike the "Gang of 14" deal reached during the last filibuster crisis. Pickering's book outlined proposals for a permanent agreement, but that either party in the minority would give up its power to the majority seems unlikely anytime soon.



Brian Perry is a partner with Capstone Public Affairs, LLC. Reach him at: reasonablyright@brianperry.ms or @CapstonePerry on Twitter.