Republicans are considering the use of the nuclear option to complete the nomination of some of President Trump’s judicial and administrative nominees. This article gives the history of and explains the nuclear option.
The Democrats were the first to use the nuclear option. They did so on November 21, 2013, to proceed to the confirmation vote for President Obama’s nominee for the United States Court of Appeals for the District of Columbia Circuit, Judge Patricia Ann Millett.[1] Republicans employed the nuclear option on April 6, 2017, to proceed to the confirmation vote for President Trump’s nominee for the United States Supreme Court, Judge Neil Gorsuch.[2]
Before explaining the nuclear option, it is necessary to understand the Senate’s role in the confirmation process. According to the U.S. Constitution, the Senate provides advice and consent on nominations of officers of the United States and federal judges.[3] For a nominee to be confirmed, a two-step process must occur: (1) a vote to invoke cloture and (2) a vote on the nomination itself. In the first step, which must be satisfied before a vote on the nomination can occur, the Senate must pass a motion to end debate, a process known as a “cloture motion, ” “invoking cloture,” or “preventing a filibuster.” Sixty (60) votes are required to pass the cloture motion. The first step is mandated by Standing Rule 22 of the Senate.[4] Second, after the cloture motion, Senators vote on the nomination itself. Fifty-one (51) votes, a simple majority, are required to confirm the nominee.
The nuclear option is a four-step parliamentary procedure which has been used to confirm nominees when it is clear that cloture is unattainable. In the previous uses of the nuclear option, the majority of the Senate lessened the cloture requirement to fifty-one (51) votes. In 2013, the Democrats did so by reinterpreting the language of Standing Rule of the Senate 22. In 2017, the Republicans did so by reinterpreting the precedent that the Democrats set with their use of the nuclear option in 2013. In each case, the majority implemented its nuclear option based on Standing Rule 20 of the Senate. This rule states that, when appealing the ruling of the Presiding Officer of the Senate, the decision of the majority of the Senate controls.[5] In other words, Standing Rule 20 of the Senate states that the a vote of the majority of the Senate can override the ruling of the Presiding Officer.
In both uses of the nuclear option, a four-step process occurred. The only difference was the rule or precedent being overturned. This CHART explains how the majority party has used the nuclear option.
In the nuclear option, the majority party is changing a rule or precedent even though the rule or precedent states the opposite. In essence, it is a parliamentary fiction. A football analogy shows the absurdity of the nuclear option. Imagine that the offense is allowed to change the point value of a field goal to four (4) points so it can win the game even though the offense, defense, and referees know that the a field goal is only worth three (3) points. That said, because the Senate operates on precedent and the Democrats established the precedent of using the nuclear option for judicial nominees, Republicans took the proper course of action by using the nuclear option for their judicial nominee.
During each use of the nuclear option, the cloture rule was the issue in question. Rather than use the nuclear option, the Senate would be better off eliminating the cloture rule. The Senate should replace it with a system which limits the debate on nominees based on time rather than Senators’ votes.
[1] For the Senate’s written record, see https://www.senate.gov/legislative/LIS/floor_activity/2013/11_21_2013_Senate_Floor.htm. For a video, see the following link starting at 1:36:55: https://www.c-span.org/video/?316395-1/senate-session&start=6054
[2] For the Senate’s written record, see https://www.senate.gov/legislative/LIS/floor_activity/2017/04_06_2017_Senate_Floor.htm For a video, see the following link starting at 2:01:30: https://www.c-span.org/video/?426285-1/senate-rules-change-paves-neil-gorsuchs-confirmation&start=7248
[3] Article 2, Section 2.
[4] https://www.rules.senate.gov/rules-of-the-senate The U.S. Senate created the cloture motion in 1917 when it adopted Standing Rule of the Senate 22. This rule required 67 votes to invoke cloture, or end debate, and allow for a vote. In 1975, the rule was amended to decrease the number of votes to 60. https://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm
[5] https://www.rules.senate.gov/rules-of-the-senate