(raising hand)
You’ve hit upon the reason why Democrats are so outraged about the possibility of the nuclear option, and the reason why Republicans are threatening it: there’s no way to filibuster the nuclear option.
The Senate basically runs by three sets of rules: the Standing Rules, the organizational resolutions that are passed at the beginning of each Congress, and the precidents. Let me briefly explain each one.
Organizational resolutions do things like designate who is the Majority Leader and such. Theoretically, these can be filibustered, but I believe that would be unprecidented.
The Standing Rules basically continue until changed, and, by the text of the Standing Rules, it takes 67 votes to invoke cloture on changing the text of the Standing Rules. If there is no filibuster, the Senate may change its Standing Rules with 51 votes. This isn’t really relevant to the nuclear option.
The precidents of the Senate are exactly like case law in the courts. When disputes arise about interpretation of the Standing Rules, the presiding officer has to rule, and that creates a precident. If Senators disagree with the ruling, they can ask for a vote to overturn the chair’s ruling, but there is no debate allowed if a senator asks to do this. However it comes out, the precident is binding on the Senate until it is overturned. This is the heart of the nuclear option.
The plain text of the Standing Rule that deals with cloture says that it takes a 3/5 vote of the Senate to invoke cloture on any debatable motion, legislation, or other matter (except for rule changes and treaties, which would require 2/3). Underthe nuclear option, Bill Frist would ask the chair to rule that “any debatable motion, legislation, or other matter” does not include judicial nominations. The Chair, acting as a shill, would then agree with Frist. Someone would appeal the ruling of the chair, but because this motion cannot be debated, the Senate would go to an immediate vote, Republicans would vote in favor of the chair, Democrats would lose, and a new precident – not a new Standing Rule, but a new precident of how a Standing Rule is to be interpreted – would be created.
I hope that this explaination is helpful.
Now, to the meat of the matter, in a tangential way: there are many folks out there who have a problem with Roe vs Wade, not because it legalized abortion, but because five justices reached into the Constitution and invented a right to privacy that exists nowhere in the text of the Constitution. In effect, these people say that the Supreme Court wanted to reach a particular decision, text of the Constitution be damned.
Well, this is exactly the same thing that is happening to Senate rules. There is no text of a Senate rule that justifies gutting the filibuster on judicial nominations. The plain text of the Senate rules is absolutely clear that 3/5 of the Senate must vote to invoke cloture on legislation, motions, nominations, or nearly anything else. The nuclear option is basically a majoritarian way of declaring that red is green, no matter how perfectly obvious it is that red is red.
Bottom line: if you think the Supreme Court erred in Roe v Wade by reading into the Constitution words that do not exist, you should also think that Senate Republicans are erring by reading words that do not exist in Senate Rules. Unfortunately, no good Democrat is going to use that argument, because they can’t be seen as not fully supporting Roe v Wade, but the same principle applies. Lawful societies do not ignore the plain language of laws simply in order to achieve political ends.
Oh, and one other point of clarification: the nuclear option would result in a near shutdown of the Senate, NOT of any government agency. The Senate would continue to pass appropriations bills to keep the government running. What this means is that Senate Democrats are not as crazy as Newt Gingrich in threatening a government shutdown, and that the threat to “shut down” the Senate would hardly matter a whit to anyone outside the Beltway. it’s not a terribly effective threat.