Nuclear option

The nuclear or constitutional option is a parliamentary procedure that allows the U.S. Senate to override a rule or precedent by majority vote. The presiding officer of the United States Senate rules that the validity of a Senate rule or precedent is a constitutional question. They immediately put the issue to the full Senate, which decides by majority vote. The procedure thus allows the Senate to decide any issue by majority vote, even though the rules of the Senate specify that ending a filibuster requires the consent of 60 senators (out of 100) for legislation, 67 for amending a Senate rule. The name is an analogy to nuclear weapons being the most extreme option in warfare.

In 1917, a threat to use what is now known as the nuclear option resulted in reform of the Senate's filibuster rules. An opinion written by Vice President Richard Nixon in 1957 concluded that the U.S. Constitution grants the presiding officer the authority to override Senate rules.^[1] The option was used to make further rule changes in 1975.^[2] In November 2013, Senate Democrats used the nuclear option to eliminate filibusters on executive branch nominations and federal judicial appointments other than those to the Supreme Court.

Before November 2013, Senate rules required a three-fifths vote of the "duly chosen and sworn" members of the Senate^[3] – (usually 60 votes) to end debate on a bill, nomination or other proposal; they also require a two-thirds vote ("present and voting"^[3] – 67 or fewer votes) for a change to the Senate rules. Those rules effectively allowed a minority of the Senate to block a bill or nomination through the technique of the filibuster. This had resulted in a de facto requirement that a nomination have the support of 60 Senators to pass, rather than a majority of 51. A three-fifths vote is still required to end debates on legislation and Supreme Court nominations.

In most proposed variations of the nuclear option, the presiding officer would rule that a simple majority vote is sufficient to end debate. If the ruling is challenged, a majority would be required to overturn it. If the ruling is upheld, it becomes a precedent. This would end what had effectively become a 60-vote requirement for confirmation of an executive or judicial nominee, or the passage of legislation.

Background

The metaphor of a nuclear strike refers to the majority party unilaterally imposing a change to the filibuster rule, which might provoke retaliation by the minority party.^[4][5] The alternative term "constitutional option"^[6][7][8] is often used with particular regard to confirmation of executive and judicial nominations, on the rationale that the United States Constitution requires these nominations to receive the "advice and consent" of the Senate. Proponents of this term argue that the Constitution implies that the Senate can act by a majority vote unless the Constitution itself requires a supermajority, as it does for certain measures such as the ratification of treaties.^[4] By effectively requiring a supermajority of the Senate to fulfill this function, proponents believe that the current Senate practice prevents the body from exercising its constitutional mandate, and that the remedy is therefore the "constitutional option."

The history of the "nuclear" option, though not the name, has been traced to an opinion written by then-Vice President Richard Nixon in 1957, while he held the title President of the Senate. Nixon's opinion stated that the Constitution grants the presiding officer of the Senate the authority to override Senate rules by making a ruling that is then upheld by a majority vote.^[1] Senator Trent Lott (R-Miss.) first used the term "nuclear option" for this maneuver in March 2003.^[9][10]

A series of votes in 1975 have been cited as a precedent for the nuclear option, although some of these were reconsidered shortly thereafter.

The maneuver was brought to prominence in 2005 when Majority Leader Bill Frist (Republican of Tennessee) threatened its use to end Democratic-led filibusters of judicial nominees submitted by President George W. Bush. In response to this threat, Democrats threatened to shut down the Senate and prevent consideration of all routine and legislative Senate business. The ultimate confrontation was prevented by the Gang of 14, a group of seven Democratic and seven Republican Senators, all of whom agreed to oppose the nuclear option and oppose filibusters of judicial nominees, except in extraordinary circumstances.

The nuclear option was raised again following the congressional elections of 2012, this time with Senate Democrats in the majority (but short of a supermajority).^[11] The Democrats had been the majority party in the Senate since 2007 but only briefly did they have the 60 votes necessary to halt a filibuster. The Hill reported that Democrats would "likely" use the nuclear option in January 2013 to effect filibuster reform,^[12] but the two parties managed to negotiate two packages of amendments to the Rules concerning filibusters that passed on January 24, 2013, by votes of 78 to 16 and 86 to 9,^[13] thus avoiding the need for the nuclear option.^[14]

In July 2013, the Senate Democratic majority came within hours of using the nuclear option to win confirmation of seven of President Obama's long-delayed executive branch appointments. The ability of the minority party to filibuster appointments was preserved by a last-minute deal in which the White House withdrew two of the nominations in exchange for the other five being brought to the floor for a vote, where they were confirmed.

On November 21, 2013, Senate Democrats used the "nuclear option" to require only a majority vote to end a filibuster of certain executive and judicial nominees, not including Supreme Court nominees, rather than the 3/5 of votes previously required. A 3/5 supermajority is still required to end filibusters unrelated to those nominees.^[15]

Changes to Senate rules

The Senate does not restrict the total time allowed for debate; instead, a motion for cloture must be passed to end debate. A three-fifths majority of all senators duly sworn (60 senators, assuming there is no more than one vacancy) is required to approve the cloture motion and proceed to a vote on the main issue. Thus, although a bill might have majority support, a minority of 41 senators can prevent a final vote, effectively defeating the bill. In practice, if it is clear that the motion for cloture will not carry, the bill may simply be tabled so that the Senate can conduct other business. From time to time, however, the margin of votes for cloture may be very close, and the minority may wish to stall the cloture vote for as long as possible. Because debate time is unlimited, senators may simply speak endlessly on the Senate floor to prevent a vote from taking place; this tactic is known as a filibuster.

Depending on the number of all 100 senators "duly chosen and sworn" who are actually "present and voting", an amendment (change) to U.S. Senate Rule XXII can be difficult. Paragraph 2 of said rule states that "to amend the Senate rules...the necessary affirmative vote shall be two-thirds of the Senators present and voting." This means 67 senators if all 100 senators are "present and voting", but only 34 senators if under Rule VI, the minimum quorum of 51 senators, i.e., "a majority of the Senators duly chosen and sworn" is "present and voting."^[16]

A point of order is a parliamentary motion used to remind the body of its written rules and established precedents, usually when a particular rule or precedent is not being followed. When a senator raises a point of order, the presiding officer of the Senate immediately rules on the validity of the point of order, but this ruling may be appealed and reversed by the whole Senate. Ordinarily, a point of order compels the Senate to follow its rules and precedents; however, the Senate may choose to vote down the point of order. When this occurs, a new precedent is established, and the old rule or precedent no longer governs Senate procedure. Similarly, it is possible to raise a point of order and state that the standard procedure of the Senate is actually different from what the current rules and precedents suggest. If this point of order is sustained, a new precedent is established, and it controls Senate procedure thenceforth.

The nuclear option is a potential response to a filibuster or other dilatory tactic. A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this. The presiding officer of the Senate, usually the vice president of the United States or the president pro tempore, makes a parliamentary ruling upholding the senator's point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent. A supporter of the filibuster may challenge the ruling by asking, "Is the decision of the Chair to stand as the judgment of the Senate?" This is referred to as "appealing from the Chair." An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue. If the appeal is successfully tabled, then the presiding officer's ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration. The effect of the nuclear option is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the nuclear option effects a change in the operational rules of the Senate, so that the filibuster or dilatory tactic would thereafter be barred by the new precedent.

The term "nuclear option" refers to any plan to change Senate rules (not precedents) without the support of a supermajority. Senate precedents have been established and altered throughout the entire history of the Senate by direct rulings of the chair, actions relating to rulings of the chair, or direct Senate action of itself. Riddick's Senate Procedure is a compilation by Senate parliamentarians of precedents established by the Senate. Senate rules are modified by simple resolutions considered and adopted under the rules of the Senate. The nuclear option is a process to alter Senate rules by the exercise of the Constitutionally granted right that the Senate can change its rules notwithstanding any existing rule or law to the contrary. This is why supporters of this type of rules change refer to it as the "Constitutional Option".

After her election to the Senate in 2012, Elizabeth Warren (D.-Mass.) declared that on her first day as a senator she would attempt to amend the Senate rules in this way: “On the first day of the new session in January, the senators will have a unique opportunity to change the filibuster rule with a majority vote, rather than the normal two-thirds vote. The change can be modest: If someone objects to a bill or a nomination in the United States Senate, they should have to stand on the floor of the chamber and defend their opposition.”^[17]

Historical backdrop

The first set of Senate rules included a procedure to limit debate called "moving the previous question." This rule was dropped in 1806 in the misunderstanding that it was redundant.^[2] Starting in 1837, senators began taking advantage of this gap in the rules by giving lengthy speeches so as to prevent specific measures they opposed from being voted on, a procedure called filibustering. In 1890, Senator Nelson Aldrich (R-RI) threatened to break a Democratic filibuster of a Federal Election Bill by invoking a procedure called "appeal from the chair." At this time, there was no cloture rule or other regular method to force an immediate vote. Aldrich's plan was to demand an immediate vote by making a point of order. If, as expected, the presiding officer overrules the point, Aldrich would then appeal the ruling and the appeal would be decided by a majority vote of the Senate. (This plan would not work today because appeals from the chair are debatable under modern rules.) If a majority voted to limit debate, a precedent would have been established to allow debate to be limited by majority vote. Aldrich's plan was procedurally similar to the modern option, but it stayed within the formal rules of the Senate and did not invoke the Constitution. In the end, the Democrats were able to muster a majority to table the bill, so neither Aldrich's proposed point of order nor his proposed appeal was ever actually moved.

In 1892, the U.S. Supreme Court ruled in United States v. Ballin that both houses of Congress are parliamentary bodies, implying that they may make procedural rules by majority vote. In 1917, Senator Thomas J. Walsh^[2] contended the majority of the Senate could revise a procedural rule at any time, despite the requirement of the Senate rules that a two-thirds majority is necessary to approve a rule change. "When the Constitution says, 'Each House may determine its rules of proceedings,' it means that each House may, by a majority vote, a quorum present, determine its rules," Walsh told the Senate. Opponents countered that Walsh's constitutional option would lead to procedural chaos, but his argument was a key factor in the adoption of the first cloture rule later that year. In 1957, Vice President Richard Nixon expressed an opinion that no Senate may constitutionally enact a rule that deprives a future Senate of the right to approve its own rules by the vote of a simple majority.^[18] (Nixon made clear that he was speaking for himself only, not making a formal ruling.^[1]) Nixon's opinion, along with similar opinions by Hubert Humphrey and Nelson Rockefeller, has been cited as precedent to support the view that the Senate may amend its rules at the beginning of the session with a simple majority vote.^[19]

The option was officially moved by Senator Clinton P. Anderson (D-NM) (1963), Senator George McGovern (D-SD) (1967), and Senator Frank Church (D-ID) (1969), but was each time defeated or tabled by the Senate.^[20] According to one account, the option was arguably endorsed by the Senate three times in 1975 during a debate concerning the cloture requirement.^[7] A compromise was reached to reduce the cloture requirement from two-thirds of those voting (67 votes if 100 Senators were present) to three-fifths of the current Senate (60 votes if there were no current vacancies) and also to approve a point of order revoking the earlier three votes in which the Constitutional option had been invoked. (This was an effort to reverse the precedent that had been set for cloture by majority vote).

Senator Robert Byrd (D-WV) was able to effect changes in Senate procedures by majority vote four times when he was majority leader without the support of two-thirds of senators present and voting (which would have been necessary to invoke cloture on a motion for an amendment to the Rules): to ban post-cloture filibustering (1977), to adopt a rule to limit amendments to an appropriations bill (1979), to allow a senator to make a non-debatable motion to bring a nomination to the floor (1980), and to ban filibustering during a roll call vote (1987).^[21]

Clinton appointments: 1993–2000

In 1995, Democrats held the White House. The New York Times editorialized, "The U.S. Senate likes to call itself the world's greatest deliberative body. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This (is a) relentless abuse of a time-honored Senate tradition … Once a rarely used tactic reserved for issues on which Senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes."^[22] There was no attempt to rewrite Senate rules for cloture at that time.

In 1996, President Bill Clinton nominated Judge Richard Paez to the United States Court of Appeals for the Ninth Circuit. Republicans held up Paez's nomination for more than four years, culminating in a failed March 8, 2000 filibuster. Only 14 Republicans approved it. Senate Majority Leader Bill Frist (R-TN) was among those who voted to filibuster Paez.^[23][24] Paez was ultimately confirmed with a simple majority.

In addition to filibustering nominations, the Republican-controlled Senate refused to hold hearings for some 60 Clinton appointees, effectively blocking their nomination from coming to a vote on the Senate floor.^[25]

Bush appointments: 2001–2006

When George W. Bush took office in 2001 there remained dozens of federal court vacancies. Democratic Senators contended that these vacancies remained despite Clinton nominations to fill them because of obstruction by Republican Senators. Republicans held a majority in the Senate during the last six years of the Clinton administration and controlled who would be voted on. Democratic Senators asserted that, for the most part, Republicans did not raise objections to those judicial candidates, but simply refused to hold hearings on the nominations.

Threatened use of nuclear option during Bush presidency

Lines are drawn

In the 2005 Senate, Republicans held 55 seats and the Democrats held 45 including Jim Jeffords, an independent from Vermont who caucused with the Democrats. Confirmation requires a plurality of votes, and the Republicans could easily confirm their nominees if brought to the floor. Earlier in 2005, Democrats had blocked the nomination of 10 of George W. Bush's nominees, saying they were too conservative and that Republicans had blocked many of their nominees back in the 1990s. Frist then threatened to use the nuclear option in response. Democrats warned that if Frist used the nuclear option they would shut down the Senate so that no business of any sort could be transacted.

In March 2005, President Bush announced that the administration would no longer seek the American Bar Association's (ABA) evaluations of federal judicial candidates, responding to Republican complaints of liberal bias and ending a tradition started by Eisenhower in 1953.^[26] Despite this, the ABA's committee continues to provide the service.^[27] Democratic senators all favor the ABA input.^[26]

During his first term, President Bush nominated 46 people to federal appeals court seats, of which 36 were confirmed. Democrats blocked the confirmation of 10 nominees, on the grounds that they were too "out of the mainstream" for a lifetime appointment. At the beginning of his second term, Bush resubmitted seven of the 10 names. Senate Minority Leader Harry Reid (D-Nev.) vowed to fight their confirmation. Senate Majority Leader Frist threatened to use the nuclear option to get them confirmed.

Senator Ted Stevens (R-Alaska) first suggested using a ruling of the chair to defeat a filibuster of judicial nominees in February 2003. The code word for the plan was "Hulk". Weeks later Sen. Trent Lott (R-Miss.) coined the term nuclear option because the maneuver was seen as a last resort with possibly major consequences for both sides.^[28]

The legality of the nuclear option has been challenged. The Senate parliamentarian, Alan Frumin, was appointed by Senator Lott. Frumin is an ostensibly neutral staff member and appointed keeper of the Senate's rules, and is opposed to the nuclear option.^[29] It's been reported that a Congressional Research Service report "leaves little doubt" that the nuclear option would not be based on previous precedents of the Senate.^[30]

"Extremist" judges

In April 2005, Senate Democrats were blocking the confirmation of seven of President Bush's nominees, calling them too extreme for a lifetime appointment. The most controversial nominees were Janice Rogers Brown and Priscilla Owen^[31] (both later confirmed).

Nuclear option readied

Under pressure by the White House and social conservatives, Majority Leader Bill Frist signaled his readiness to pull the trigger on the 'nuclear option' to push through Bush's appellate court choices blocked by the Democrats' threat of filibuster.^[32]

Senate majority leader Bill Frist said that Owen ought to have the "courtesy of an up-or-down vote"^[33] and was reportedly deciding whether to use the "nuclear option".^[34] Senate minority leader Harry Reid wrote, in a letter to Frist, "But I want to be clear: we are prepared for a vote on the nuclear option."^[33]

Republican pollster Ayres, McHenry and Associates found that 82 percent of registered voters believe that "well-qualified" nominees should receive an up or down vote (which would have included all of the candidates except Janice Rogers Brown).^[35] An Associated Press-Ipsos poll released May 20, 2005, found 78 percent of Americans believe the Senate should take an "assertive role" examining judicial nominees rather than just give the president the benefit of the doubt.^[36] Democratic pollster Westhill Partners found that only 30 percent of Americans approve changing "the rules to require only 51 votes to end a filibuster – thereby eliminating the current system of checks and balances on the majority party."^[37]

Political motivations

Many Democrats viewed Frist's threats to push the nuclear option button to be more about his plan to run for president in 2008 than about the qualifications of the few nominees currently blocked in the Senate.^[38] Quoting from Slate.com:^[39]

“

Frist has made clear he will give up his Tennessee Senate seat in 2006, keeping his pledge to serve just two terms and leaving himself free to campaign for president. He has begun to court his party's conservative base.

”

Pat Robertson, founder of Christian Coalition of America, and several other prominent Christian conservatives have endorsed the nuclear option as a necessary means of getting conservative judges onto the bench. In a May 1, 2005 interview on ABC's 'This Week with George Stephanopoulos', Pat Robertson said that Democratic judges are a greater threat to U.S. unity and stability than Al Qaeda, Nazi Germany or Civil War.^[40] On Sunday, April 25, 2005, Family Research Council sponsored "Justice Sunday" featuring Bill Frist – a 90-minute simulcast over Christian radio and television networks enthusiastically supporting the nuclear option.^[41][42] In January 2005, Dr. James C. Dobson, head of Focus on the Family, threatened six Democratic senators if they block conservative nominees.^[43] On May 24, 2005, after the compromise negotiated between 14 Senators was announced (the Gang of 14), Dobson said the agreement "represents a complete bailout and a betrayal by a cabal of Republicans and a great victory for united Democrats."^[44]

One of the arguments made by Senate Republicans opposed to the nuclear option was that Democrats might gain a Senate majority, or the Presidency, again. Thus the GOP might need the filibuster to block the appointment of what Republicans might consider to be an unacceptable nominee by the Democratic president.

Protests against the nuclear option took place on numerous college campuses; on the Princeton University campus, outside the Frist Campus Center (named for the senator's family) students staged a protest against the nuclear option by simulating a filibuster for two weeks non-stop, beginning on April 26, 2005.

Obstruction and a "power grab"

In response to claims of "Senate obstructionism," Senate Minority Leader Harry Reid (D-Nev) pointed out that only 10 of 214 nominations by President Bush have been turned down. Former President Bill Clinton called Republican efforts to paint Democrats as obstructionist "a hoax" stating "The Republicans wouldn't even give a vote to 40 of my Court of Appeals judges... never mind all the others that they wouldn't have voted." One of Democrats' biggest complaints had been that more than 60 of President Clinton's nominees were bottled up in committee, leaving positions available for Bush to fill.^[45] (Republicans were the majority in the Senate for six of Clinton's eight years as President—1995–2001.) On April 27, 2005, Former Vice President Al Gore said, "Their grand design is an all-powerful executive using a weakened legislature to fashion a compliant judiciary in its own image. ... What is involved here is a power grab."^[46]

Democratic proposal

On May 9, 2005, Senate Democratic leader Harry Reid offered the Democrats' support for one of President Bush's judicial nominees, former Senate lawyer Thomas B. Griffith.^[47] Democrats cited this offer as a goodwill gesture to show that they are willing to cooperate with Republicans and confirm "acceptable" nominees. Reid stated that Democrats "will only block unacceptable nominees" (such as Brown and Owen), but would confirm Griffith, saying "Let's take a step away from the precipice. Let's try cooperation, rather than confrontation."

Republican spokesman Bob Stevenson rejected the offer, saying, "Why stop at one? We should take them all up." Republicans contended that the Democrats' offer was empty, since the Democrats would have retained the discretion to block any of President Bush's future nominees that they deemed "extremist," even when those nominees enjoyed the support of all Republican Senators. Thus, that Reid's offer did not resolve the problems that led to consideration of the nuclear option in the first place. Republicans also noted that the Democrats' judicial filibusters had already killed three of President Bush's Court of Appeals nominations (Miguel Estrada, Charles Pickering, and Carolyn Kuhl), as those judges withdrew their nominations rather than continue to fight the filibuster.^[48]

Republican counter-proposal

Senate Majority Leader Bill Frist (R-Tenn) floated a Republican counter-offer. In exchange for ending the filibuster against judicial nominees, the Republicans offered to end the practice of bottling up appellate-court nominees in committee (a nod to President Clinton's nominees who were denied floor votes), and to guarantee up to 100 hours of debate on each nomination. Minority Leader Reid rejected that offer calling it, "a big wet kiss to the far right."^[48]

Critical mass

On Friday, May 20, a cloture vote for the nomination of Janice Rogers Brown was rescheduled for Tuesday, May 24. The failure of this cloture vote would be the beginning of the nuclear option, immediately followed by the asking for the ruling of the chair on the constitutionality of the filibuster. On May 23, 2005, Majority Leader Frist called for a vote on Priscilla Owen. This threatened to trigger the nuclear option.

Gang of 14

Senator John McCain (R-AZ) and Senator Ben Nelson (D-NE) reached out to a number of colleagues on both sides to compromise by winning confirmation of some of the disputed nominees (Janice Rogers Brown, William Pryor, and Priscilla Owen) while preserving the judicial filibuster on William Myers and Henry Saad.^[49] Their efforts succeeded on the evening of May 23, 2005, one day before the cloture vote. They announced an agreement by seven Republican and seven Democratic Senators to avert a vote on the nuclear option while preserving the filibuster for "extraordinary circumstances."^[50] The block of senators who agreed to the compromise included Republicans John McCain, Lindsey Graham of South Carolina, John Warner of Virginia, Olympia Snowe of Maine, Susan Collins of Maine, Mike DeWine of Ohio, and Lincoln Chafee of Rhode Island; and Democrats Nelson, Joe Lieberman of Connecticut, Robert Byrd of West Virginia, Mary Landrieu of Louisiana, Daniel Inouye of Hawaii, Mark Pryor of Arkansas, and Ken Salazar of Colorado. This group was quickly dubbed "the Gang of 14" in various blogs and news outlets. McCain, Chafee, Collins, and Snowe were already on record as opposing the nuclear option, leaving the Democrats two votes short of defeating an attempt to trigger it (they would have needed 51 votes to override Vice President Dick Cheney's tie-breaking vote).

The bipartisan group was large enough to deny Frist the 50 votes he needed to trigger the nuclear option, and also large enough to reach cloture on a Democratic filibuster. It states, in part:

...we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

Democrats in the Gang agreed not to filibuster the judges listed in the agreement (save in "extraordinary" circumstances) and Republicans in the Gang agreed not to vote for the nuclear option. The definition of what constituted an "extraordinary" circumstance was left up to the individual senator. For example, Graham and DeWine let it be known that they did not consider nominations to the Supreme Court to fit the definition.

Frist reluctantly approved the compromise. Several of the blocked nominees were brought to the floor, voted upon and approved as specified in the agreement, and others were dropped and did not come up for a vote, as implied by the agreement.

As a result of this agreement, Owen was confirmed 55-43, Brown was confirmed 56-43, and Pryor was confirmed 53-45.

Use of nuclear option during Obama presidency

In 2011, with a Democratic majority in the Senate (but not a supermajority), Senators Jeff Merkley (D-Ore.) and Tom Udall (D-N.M.) proposed "a sweeping filibuster reform package" to be implemented via the constitutional option but Majority Leader Harry Reid dissuaded them from pushing it forward.^[51] In October 2011, however, Reid triggered the nuclear option to make a more modest change in Senate precedents. In a 51-48 vote, the Senate prohibited any motion to waive the rules after a filibuster is defeated.^[52][53][54]

Changing Senate precedents with a majority threshold does not reach the level of an actual change in Senate rules. On several occasions in the past, former Senate Majority leader Robert Byrd, used this same procedure to change Senate precedents. On one occasion, he was able to put an end to the post-cloture filibuster by setting a precedent that the Presiding Officer take the initiative to rule dilatory amendments out of order.

The nuclear option was raised again following the congressional elections of 2012.^[11] The Hill reported that Democrats will "likely" use the nuclear option in January 2013 to effect filibuster reform,^[12] although as of mid-November supporters of filibuster reform did not even have the support of 51 Senators, according to Senator Tom Udall (D-N.M.), a leading proponent of the nuclear option.^[55]

In the end, negotiation between the two parties resulted in two packages of "modest" amendments to the rules on filibusters that were approved by the Senate on January 24, 2013, without triggering the nuclear option.^[56] Changes to the standing orders affecting just the 2013-14 Congress were passed by a vote of 78 to 16, eliminating the minority party's right to filibuster a bill as long as each party has been permitted to present at least two amendments to the bill.^[56] Changes to the permanent Senate rules were passed by a vote of 86 to 9.^[56]

In July 2013, the nuclear option was raised as nominations were being blocked by Senate Republicans as Senate Democrats prepared to push through a change to the chamber’s filibuster rule.^[57] On July 16, John McCain announced an agreement had been made, avoiding a showdown and allowing a vote on nominations.^[58]

Events of November 2013

On November 21, 2013, the Senate voted 52-48, with all Republicans and 3 Democrats voting against, to eliminate the use of the filibuster against all executive branch nominees and judicial nominees other than to the Supreme Court. At the time of the vote there were 59 executive branch nominees and 17 judicial nominees awaiting confirmation.^[59]

The Democrats' stated motivation for this change was expansion of filibustering by Republicans during the Obama administration, in particular blocking three nominations to the United States Court of Appeals for the District of Columbia Circuit. Republicans had asserted that the D.C. Circuit was underworked,^[59] and also cited the need for cost reduction by reducing the number of judges in that circuit.^[60]

Up until November 21, 2013, there had been 168 cloture motions ever filed (or reconsidered) in the history of the nation with regard to nominations; nearly half of them — 82 — had been during the Obama Administration.^[61] However, those cloture motions were often filed merely to speed things along, rather than in response to any filibuster.^[62]

As of November 2013, President Obama’s nominees had faced 79 votes to end debate (i.e. cloture votes), compared to just 38 during the preceding eight years under President George W. Bush.^[63] Most of those cloture votes successfully ended debate, and therefore most of those nominees cleared the hurdle; Obama won Senate confirmation for 30 out of 42 federal appeals court nominations, compared with Bush's 35 out of 52.^[63][64]

Regarding Obama's federal district court nominations, the Senate approved 143 out of 173 as of November 2013, compared to George W. Bush's first term 170 of 179, Bill Clinton's first term 170 of 198, and George H.W. Bush's 150 of 195.^[63][65] Filibusters were used on 20 Obama nominations to U.S. District Court positions,^[66] but Republicans had allowed confirmation of 19 out of the 20 even before the nuclear option was invoked.^[67]

Differing standards for consent

The arguments for or against the nuclear option boil down to whether a simple majority (51/49) or (51/50 with the Vice President breaking the tie) of the Senate should be able to confirm a judicial nominee or pass a bill, or whether a three-fifths vote (60/100) should be required, as required for passage of a large amount of Senate business, and whether the Constitution mandates either standard.

Simple majority

The U.S. Constitution does not expressly address how many votes are required for passage of a bill or confirmation of a nominee. Many of those supporting a simple majority standard argued that this silence implied that a simple majority is sufficient; they contrasted this with Article II's language for Senate confirmation of treaties, which appears within the same clause and explicitly requires a two-thirds majority.

From this, supporters of the nuclear option argued that it would bring current rules in line with the framers' original intent – hence supporters' preferred nomenclature of the "constitutional option". They argue that the filibuster of Bush's nominees effectively establishes precedent for a 60-vote threshold for approval of judicial nominees instead of the 51 vote standard required by an up-or-down vote.^[68][69][70] A number of existing Judges and Justices were confirmed with fewer than 60 votes, including Supreme Court Justice Clarence Thomas (confirmed in a 52–48 vote in 1991).^[71][72]

Opponents of the nuclear option pointed to Senator Bill Frist's vote to filibuster Paez in 2000 as evidence that Frist supported the sixty vote threshold when it suited him. When a vote for cloture on the confirmation of Paez was called, 14 Senators voted to continue the filibuster, including Frist.^[73] They also argued that the term "advice and consent" is vague and does not specify a need for an up or down vote.

Three-fifths majority

Democrats claimed the nuclear option was an attempt by Senate Republicans to hand confirmation power to themselves. Rather than require the President to nominate someone who will get broad support in the Senate, the nuclear option would allow Judges to not only be "nominated to the Court by a Republican president, but also be confirmed by only Republican Senators in party-line votes."^[74][75]

Pro-nuclear option Republicans retorted that they had won recent elections and in a democracy the winners rule, not the minority.^[76] They also argued that while the Constitution requires supermajorities for some purposes (such as 2/3 needed to ratify a treaty), the Founders did not require a supermajority for confirmations, and that the Constitution thus presupposes a majority vote for confirmations.

Of the 9 U.S. Supreme Court Justices seated as of May 2005, 6 were confirmed with the support of 90 or more Senators, 2 were confirmed with at least the support of 60 senators, and only 1 (Thomas) was confirmed with the support of fewer than 60 Senators, however, since John G. Roberts was confirmed, no candidate has gotten more than 68 votes. Conservative nominees for Appellate Courts that were given a vote through the "Gang of 14" were confirmed almost exclusively along party lines: Priscilla Owen was confirmed 55-43, Janice Rogers Brown was confirmed 56-43, and William Pryor was confirmed 53-45.

The text of the Constitution requires a two-thirds majority in the Senate for confirming treaties,^[77] expelling one of its members,^[78] and concurring in the proposal of Constitutional Amendments.^[79] In all other matters, the Constitution gives the Senate the power to make its own rules.^[78] Starting with the first Senate in 1789, the rules left no room for a filibuster; a simple majority could move to bring the matter to a vote. However, in 1806, the rule allowing a majority to bring the previous question ceased to exist. The filibuster became possible, and since any Senator could now block a vote, 100% support was required to bring the matter to a vote. A rule change in 1917 introduced cloture, permitting a two-thirds majority of those present to end debate, and a further change in 1975 reduced the cloture requirement to three-fifths of the entire Senate. Supporters of the right to filibuster argue that the Senate has a long tradition of requiring broad support to do business, due in part to the threat of the filibuster, and that this protects the minority.

Other controversies

Advice and consent

Supporters of the nuclear option claim that Democrats obstructed the approval of the president's nominees in violation of the intent of the U.S. Constitution. President Bush had nominated forty-six candidates to federal appeals courts. Thirty-six were confirmed. 10 were blocked and 7 were renominated in Spring 2005. Democrats point out that 63 of President Clinton's 248 nominees were blocked via procedural means at the committee level, denying them a confirmation vote and leaving the positions available for Bush to fill.^[80][81]

Article II, Section 2, of the U.S. Constitution says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges...";^[82] opponents contend that the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations.

Polling indicated public support for an active Senate role in this "advise and consent" capacity. An Associated Press-Ipsos poll released May 20, 2005, found 78 percent of Americans believe the Senate should take an "assertive role" examining judicial nominees rather than just give the president the benefit of the doubt.^[36] The agreement to stave off the "nuclear option" reached by 14 moderate Senators supports a strong interpretation of "Advice and Consent" from the Constitution:^[50]

We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

Partisan appointments

Some fear that implementation of the nuclear option in the context of judicial nominations would allow the courts to be "packed" by a party that controls the other two branches of the government. As of November 2013, Republican presidents have appointed five of the nine justices on the Supreme Court and all four of the chief justices since the Truman administration.

In 1937, Franklin Delano Roosevelt, a Democrat, sought to alter the court through the Judiciary Reorganization Bill of 1937 (a.k.a. "the court-packing plan"). Noting that the Constitution does not specify a number of Supreme Court justices, the bill would have added a seat for every justice over the age of 70½, creating a new majority on the Court. Roosevelt allowed the bill to be scuttled after Justice Owen Roberts began upholding the constitutionality of his New Deal programs.

The nuclear option by itself is a significantly less drastic strategy, only allowing the majority to fill existing vacancies on the Court. However, if the two strategies are combined, a party that controls the Presidency and has a simple majority in the Senate, as FDR's Democrats did in 1937, could quickly gain control of the Court as well.

Filibustering judicial nominees

In response to claims that the filibuster of judicial nominees is unconstitutional, opponents pointed out that the Constitution requires two-thirds majorities for actions such as treaty ratification and proposed constitutional amendments and is silent on what kind of vote is required for other matters. Instead, Article I, Section V of the Constitution permits and mandates that each house of Congress set up its own rules. Republicans countered that the fact that the Constitution's Appointment's Clause does not impose a three-fifths majority requirement for the Senate's "advice and consent" function in considering the President's judicial (and executive branch) nominees is, itself, evidence that the Framers consciously rejected such a requirement.^[83] Republicans also stated that the general rule in Parliamentary systems "is that majorities govern in a legislative body, unless another rule is expressly provided."^[83] Critics pointed out that the Senate is a less-than-democratic body that could conceivably allow a majority of senators, representing a minority of the national population, to enact legislation or confirm appointees lacking popular support.

Republicans pointed out that several Democrats once opposed the filibuster on judicial nominees, and only recently changed their views as they had no other means of stopping Bush's judicial appointees.^[84][85][86]

Republicans were staunch supporters of the filibuster when they were a minority party and frequently employed it to block legislation. Republicans continued to support the filibuster for general legislation—the Republican leadership insisted that the proposed rule change would only affect judicial nominations. According to the Democrats, arguments that a simple majority should prevail apply equally well to all votes where the Constitution does not specify a three-fifths majority. Republicans stated that there is a difference between the filibustering of legislation—which affects only the Senate's own constitutional prerogative to consider new laws—and the filibustering of a President's judicial or executive nominees, which arguably impinges on the constitutional powers of the Executive branch.

Other uses of "nuclear option"

Beyond the specific context of U.S. federal judicial appointments, the term "nuclear option" has come to be used generically for a procedural maneuver with potentially serious consequences, to be used as a last resort to overcome political opposition. In a recent legal ruling on the validity of the Hunting Act 2004^[87] the UK House of Lords used "nuclear option" to describe the events of 1832, when the then-government threatened to create hundreds of new Whig peers to force the Tory-dominated Lords to accept the Great Reform Act.

The term is also used in connection with procedural maneuvers in various state senates.^{[88][89][90][91][92]}

The nuclear option is not to be confused with reconciliation, which allows issues related to the annual budget to be decided by a majority vote without the possibility of filibuster.^[93][94]

See also

• United States federal judge
• Federal judicial appointment history
• Cloture
• George W. Bush judicial appointment controversies
• George W. Bush Supreme Court candidates
• Reconciliation (United States Congress)
• Up or down vote

References

External links

Supportive of nuclear option

• M. Gold & D. Gupta, The Constitutional Option to Change Senate Rules and Procedures: a Majoritarian Means to Overcome the Filibuster in the Harvard Journal of Law and Public Policy; 28 Harvard Journal of Law & Public Policy 205 (2004) (arguing that the nuclear/constitutional option it is firmly grounded in Senate history) (PDF file)
• Policy Analysis by Senate Republican Policy Committee summarizing arguments and reviewing history
• National Review's Bench Memos
• Senator George Allen (R-VA) Calls Democrats Bluff

Opposed to nuclear option

• Center for American Progress: Nuclear Option Resource Guide
• CivilRights.org: a coalition representing 180 national organizations
• Home Page for Senate Democratic Leader Harry Reid (D-Nev)
• Independent Judiciary
• Senator Reid's Letter to Bill Frist
• Washington Post article on Republican's 1968 Fortas filibuster
• Hatching a New Filibuster Precedent: The Senator from Utah's Revisionist history John Dean writes for FindLaw arguing that Orrin Hatch has attempted to mischaracterise the Abe Fortas nomination filibuster.
• Revenge of the Frist
• MoveOn.org Emergency Petition to Save the Courts

Myth and fact sheets

• Filibustering the Truth

Other

• David Law & Lawrence B. Solum, "Judicial Selection, Appointments Gridlock, and the Nuclear Option," (April 14, 2006).
• History of U.S. House Committee on Rules
• History of U.S. Senate Committee on Rules and Administration
• Standing Rules of The Senate
• TIME: The Filibuster Formula
• Politics and justice for all: Court nomination fights predate Bork, Thomas