The Senate has gone nuclear. No, that’s not a pitch for a sci-fi movie in which the Senate is operating in a post-apocalyptic nuclear wasteland (although it should be). Today Senator Majority Leader Harry Reid (D-NV) and 51 other senators exercised what has been colloquially dubbed as “the nuclear option”. In a 52-48 the Senate voted to change the rules concerning filibusters of presidential nominees by lowering the threshold for the number of votes needed for nominees to be confirmed by the Senate. All forty-four Republican senators voted against this rule change and were joined by democrats Carl Levin of Michigan, Joe Manchin of West Virginia, and Mark Pryor of Arkansas.
Since the U.S. Senate adopted Standing Rule XXII in 1917, the Senate has traditionally required a supermajority of 60 Senators in order to invoke cloture and end debate on a matter. For the first part of the Twentieth Century, filibusters usually required that a member of the Senate continuously speak in order to prevent a vote on a matter from taking place. It was during this time period that Senators such as Robert Byrd (D-WV) and Strom Thurmond (R-SC) gave infamous filibusters in which they continuously spoke for fourteen and twenty-four hours respectively to oppose the Civil Rights Act of 1957 and 1965. During this period in the Senate’s history, a filibuster on one issue would prevent the Senate from moving on to other matters. However, during the 1970s, the Senate adopted the two-track policy which allowed for the Senate to consider other legislation even when one issue was being filibustered. This was the origin of the modern filibuster which doesn’t require a Senator or a group of Senators to speak continuously in order to filibuster legislation or presidential nominees. Unless 60 votes are reached in order to invoke cloture, voting on a bill can be delayed indefinitely.
Today’s change amended Senate rules so that the president’s judicial nominees and other executive nominees could be approved with a simple majority vote, rather than a supermajority vote of three-fifths of the Senate. One exception to this change is the nomination of Supreme Court justices which still need 60 votes to be approved by the Senate. This rule change isn’t one which Senator Reid thought of on the spot, but rather an idea that has been floating around since 2005. In 2005, then Senate Majority Leader Bill Frist (R-TN), in an effort to prevent Democratic obstruction of President Bush’s judicial nominees, came up with a plan that would have amended the Senate’s rules to allow for judicial nominees to be approved with a simple majority. While Republicans at the time preferred to call this approach the “constitutional option” since they argued that it would serve to promote the Constitution’s separation of powers, it became known in the media as the “nuclear option”.
Even though the nuclear option was first explored in 2005, the “Gang of 14”, a group of seven Democrats and seven Republicans, were able to reach a compromise which prevent it from being implemented. This compromise was an agreement from Democratic senators that they wouldn’t filibuster judicial nominees except in cases of “extraordinary circumstance” and an agreement from Republicans that if Democrats remained true to their word on that issue, they would refrain from exercising the nuclear option and changing the Senate’s rules. While the Gang of 14 and other bipartisan compromises have successfully prevented the use of the nuclear option up until now, there was no bipartisan solution this time.
One of the driving forces behind Sen. Reid’s decision to use the nuclear option is Republican filibustering of President Obama’s District and Circuit nominees. This problem, which existed for quite some time before President Obama occupied the Oval Office (Democratic senators were notorious for delaying the appointment of many of President Bush’s nominees), has intensified significantly over the past few years. Jeffey Toobin, writing for the New Yorker explains in greater length how severe Senate obstruction has become. He noted that last year, there were a total of 74 District and Circuit Court judgeships that were vacant- an all time high. What was once a rare practiced employed by both sides of the aisle has become a routine practice.
Particularly frustrating for Senate Democrats was Republicans’ refusal to vote on President Obama’s three nominations for the United States Court of Appeals for the District of Columbia Circuit (frequently referred to as the D.C. Circuit). The D.C. Circuit is widely considered to be the second most important court in the United States behind the Supreme Court because of the important federal cases which it hears on a regular basis. Additionally, four of the nine current Supreme Court justices previously served on the D.C. Circuit. Currently, three of the D.C. Circuit’s eleven seats are vacant and these vacancies have existed for much of President Obama’s two terms in office.
During a midday news conference, President Obama praised the Senate’s decision by stating that:
“I realize that neither party has been blameless for these tactics. They developed over the years. But today’s pattern of obstruction, it just isn’t normal. It’s not what our founders envisioned. A deliberate and determined effort to obstruct everything, no matter what the merits, just to refight the results of an election is not normal, and for the sake of future generations we can’t let it become normal.”
While many Democratic lawmakers praised the Senate’s actions, Republicans were vociferous in their opposition to what many of them characterized as an unprecedented attempt by Democrats to re-write the rules of the Senate. Many Republican lawmakers also argued that Democrats were amending the rules surrounding filibusters in order to distract Americans from the political problems stemming from the botched implementation of the Affordable Care Act and the online exchanges that the Department of Health and Human Services was tasked with setting up. (More on that here). Senate Minority Leader Mitch McConnell (R-KY) stated “I say to my friends on the other side of the aisle, you’ll regret this. And you may regret it a lot sooner than you think.”.
For right or wrong, the Senate has chosen to act and make the greatest changes to it’s procedures in over a generation. The impact of this rule change was immediate when the Senate vote along party lines (55-43) to end debate on the nomination of Patricia Milett who is one of the three nominees for the D.C. Circuit. Democrats expect to consider and vote on the other two nominations shortly after the Senate reconvenes following it’s Thanksgiving recess. Only time will tell what consequences Senator Reid’s bold decision may have.