Nuclear Option on Judicial Filibuster

So, the Senate Democrats deployed the “Nuclear Option” — dubbed the “Constitutional Option” (pdf) by Senate Republicans in 2004 and 2005 when they were in the majority.

Cloture filings since 1917

As I understand it, they changed the Senate rules or, if you prefer, interpreted the Senate Rules to preclude use of a filibuster to delay votes on federal judicial nominees other than Supreme Court nominees. I don’t even pretend to understand the arcana of Senate procedure; but, it seems difficult to believe that, having used this tactic once, a sufficiently motivated majority would not be able to break a filibuster in a similar manner for future issues. But, maybe there is something about non-Supreme Court judicial nominees that makes theirs a special case.

The linked article suggests that the filibuster was created almost by oversight in 1806 by the Vice President Aaron Burr who eliminated a procedural tool known as the “previous question motion.” Burr found that it was of no use, had not been deployed, and its purposes would be satisfied by the “question of indefinite postponement.” The Senate got rid of the “previous question motion” in 1806 but otherwise did not impose a device by which debate might be restricted. This issue then lay dormant until the late 1830s when the battles over the Bank of the United States were raging. In 1837, Andrew Jackson had been censured for removing federal deposits from the Bank of the United States. The Senate censured him for that action and recorded the censure in the Senate Journals. A group of pro-Jacksonian Senators were relentless in their efforts to remove the censure. Eventually, a group of them resolved to talk and talk until they got their way. “It was evident that consumption of time, delay and adjournment, was their plan.” But this didn’t last long. The majority gave way and went along with them, voting to remove the censure by a vote of 24-19.

The issue lingered until 1917 with the Senate having eliminated the “previous question rule” but not having adopted a formal cloture procedure. At that time, eleven isolationists opposed a bill proposed by President Wilson to arm American merchant ships to protect them against Germans who were proposing to engage in unrestricted submarine warfare in the North Atlantic. The eleven Senators successfully prevented the bill from a vote until expiration of that session of Congress. President Wilson fumed, “the Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.” This paved the way for adoption of a cloture rule by the Senate. The premise used to prevent filibustering adoption of an anti-filibustering rule was that each new Congress was free to adopt its own rules of procedure and was not bound to the rules adopted by a previous Congress. Prior to adoption of the new rules by the new Congress, the body was bound by traditional parliamentary rules which included the “previous question motion” — a device that allowed the majority to cut off debate. Ultimately the Senate did not formally embrace that “new body” argument, but it was the impetus for adoption of a formal cloture rule in 1917 that allowed debate to be cut off by agreement of 2/3 of the body. The cloture rule was broadened in 1959 after another debate which avoided the “new body” interpretation and, instead, proceeded under the premise that Senate rules persisted from session to session. In 1975, after a great deal of effort, the cloture rule was eased from 2/3 to 3/5.

The authors of the Harvard Journal & Public Policy article linked above suggest a second way in which the constitutional/nuclear option can be exercised mid-stream:

The Senate’s constitutional rule making power can be exercised a second way: A simple majority could set a new Senate precedent that would alter the operation of a Standing Rule while leaving its text untouched. This exercise of the constitutional power could be applied to alter the interpretation and application of any Standing Rule, including Rule XXII’s requirement of a super-majority for cloture. This second form of the constitutional option also might be used to facilitate a majority’s efforts to exercise the first form: Majoritarian precedents could smooth the path toward a majority’s enactment of formal rules changes.

. . .

First, a Senator would raise a point of order to close debate. For example, a Senator could state, “Debate on this matter having proceeded for ‘x’ hours, I make the point of order that any further

debate is dilatory and not in order.” Under Senate Rule XX, points of order not referred to the Senate are not debatable except at the sufferance of the Presiding Officer,

although debate may generally be had on appeals. If the Presiding Officer sustained the point of order, he would set a new, binding Senate precedent allowing

Senators to cut off debate. That, however, would not end the matter. The minority could (and likely would) appeal the Presiding Officer’s ruling. In a final step, the majority could move to table the appeal. The tabling motion would be non-debatable and subject to immediate vote. If a simple majority voted to table the appeal, the Senate would affirm the Presiding Officer’s ruling and thus allow Senators to cut off debate under the terms of the point of order.

Wading through the minutiae that gave us and has sustained the filibuster all of these years reinforces the point that the filibuster isn’t something necessarily envisioned by the Founders when they set up the government.

However, its long tradition has formed the fabric of how Congress does business, and removing or weakening the option will likely have unforeseen consequences. The 180 degree shift in rhetoric from one part to the other between 2004-2005 and the present is both predictable and remarkable. The Democrats were waxing poetic about the intrinsic value of the filibuster to the legal fabric of our Republic. The Republicans were bemoaning that confirmation of judicial nominations being delayed by the intransigence of a minority being counter to the intent of the Founders. A look at the history of the use of the filibuster shows a marked uptick over the years. It has been at an all time high during the Obama years. With a Democratic majority in the Senate and a Democratic President, the Democratic fans of the filibuster are now very concerned that the Will of the People be done while the Republican majoritarians of the mid-2000s have discovered that the filibuster is an indispensable bulwark against tyranny. The Democrats will respond that the Republicans had taken use of the filibuster beyond all tolerable levels; and there was simply no other option. The Republicans will claim that they filibustered so much because Democratic proposals and nominations were simply intolerable and heavy handed.

I think it’s a mixed bag all around. Sooner or later, the Democrats will have cause to be unhappy that they are unable to stop a future Republican majority; and, upon taking the majority, the Republicans will find that rule by majority isn’t so tyrannical after all. The ball will bounce back and forth, and we’ll probably continue to muddle along more or less.