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The Nuclear Option

Monday, 10 April 2017

by Erin McAllister, Paralegal

James Madison wrote in the federalist papers that the Senate was "the great anchor of the Government," whose slower processes and higher thresholds for action would guard against the "fickleness and passion" of public opinion.

That may not be true since facing significant Democratic opposition, Republicans enacted the "nuclear option" to clear the way to confirm Neil Gorsuch as President Donald Trump's nominee to the Supreme Court.

The "nuclear option" is a last-resort effort for the majority party in the Senate to overcome obstruction by the minority. It involved changing the rules of the Senate so that a nominee like Gorsuch can be confirmed with a simple majority of 51 votes. Under the previous rules, 60 votes were needed to foil any attempt by the minority party to block a vote by use of the filibuster. While senators are no longer required to give actual speeches to mount a filibuster, it has remained a powerful tool that allows the minority to stall actions in the Senate until the majority can find 60 votes to break a logjam. The change to a simple majority vote may not sound very dramatic, but in a place like the Senate, which historically has operated on tradition and bipartisanship, it's a big deal befitting its doomsday name.

Former GOP Senate Majority leader Trent Lott coined the term because both parties saw it as an unthinkable final recourse, just like nuclear war. During a standoff over George W. Bush nominees in 2003, Republicans discussed invoking the parliamentary move by using the codeword "The Hulk" since it, like the superhero alter ego, cannot be controlled once it is unleashed. Others, who want to give it a positive spin, call changing the rules "The Constitutional Option."

The history of the constitutional option can be traced to a 1917 opinion by Senator Thomas J. Walsh, who contended that the U.S. Constitution provided the basis by which a newly commenced Senate could disregard procedural rules established by previous Senates, and had the right to choose its own procedural rules based on a simple majority vote. The constitutional option was given further support in 1957 by an advisory opinion written by then-Vice President (and thus President of the Senate) Richard Nixon. In his opinion, Nixon 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.

The maneuver was brought to prominence in 2005 when Majority Leader Bill Frist (R TN) 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). 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 Democrats would "likely" use the nuclear option in January 2013 to effect filibuster reform, 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, thus avoiding the need for the nuclear option.

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.

But no one pushed the button until in 2013, when then-Majority Leader Harry Reid invoked the nuclear option to lower the 60-vote threshold to 51 for approval of Executive Branch appointees (such as Cabinet secretaries) and federal judges below the Supreme Court (such as for U.S. Courts of Appeal). Reid justified the move by citing unprecedented obstruction from Senate Republicans, but members of both parties lamented the precedent it set.

Going nuclear means that future presidents of either party will have a much easier time getting their Supreme Court nominees confirmed, which could change whom they decide to appoint. Instead of choosing a more moderate judge who could win support from both parties, they could pick a more ideological jurist capable of winning only on a party-line vote, since the threshold will move from 60 to 51 votes.

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