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May 2, 2005

Anything called the “nuclear option” can’t be good. Here is what you need to know.

Crib Sheet, May 2, 2005

Anything called the “nuclear option” can’t be good. Here is what you need to know.

By Nan Aron, President, Alliance for Justice

Over the past several weeks, the debate over judicial nominations has heated up. Senate Majority Leader Bill Frist and Senate Republicans have increased threats to do away with a legislative tradition called the filibuster in regard to judicial nominations. During President Bush’s first term, Senate Democrats rejected a handful of Bush’s most controversial, out-of-the-mainstream nominees for the federal courts of appeals – the courts just below the U.S. Supreme Court – by using the filibuster. Now Senate Republicans want to change the rules in the middle of the game with what people are calling the “nuclear option.” This partisan power grab would destroy Senate tradition and damage our system of checks and balances. And this isn’t just about a few appeals court nominees, it’s about the future of the Supreme Court, too!

  • The filibuster is a 217-year-old Senate tradition. The filibuster, one of the distinguishing characteristics of the Senate, is the right to engage in extended debate. In order to end debate on a piece of legislation or a nominee in the Senate, at least 60 Senators need to agree to move forward to a vote. Without 60 votes to end debate, the legislation or nominee is “filibustered.” When our founding fathers carefully crafted our nation’s government over 200 years ago, they designed the Senate as a deliberative body to check the impulses of the House and the actions of the President. In the words of Thomas Jefferson, the Senate was intended to be “a saucer into which the nation’s passions may be poured to cool.” To help achieve this goal, Jefferson and his colleagues created the Senate with longer terms and rules of unlimited debate.
  • The Filibuster is an important tool in maintaining checks and balances. When our founding fathers designed our great democracy over 200 years ago they were very careful to create a balanced government to prevent any one person or group of people from wielding too much power. Their meticulous plan created a government with three co-equal branches, each checked by the powers of the other two. The Senate filibuster has been an essential component of the “checks and balances” that limit the power of the President and the majority party in Congress. Particularly when the same party controls the Presidency and both houses of Congress, Senate debate is one of the critical checks to protect the rights of the minority and promote bipartisan compromise. Today, a minority of Senators actually represent a majority of the American people: The 55 Republican Senators represent 131 million Americans, while the 44 Democratic Senators represent 144 million Americans.
  • The attempt to get rid of the filibuster in judicial nominations, dubbed the “nuclear option,” is a partisan power grab. For the past several months, Senator Frist and Senate Republicans have been threatening to unilaterally change the Senate rules through a complicated procedural maneuver. Under this plan, dubbed the “nuclear option” by Senator Trent Lott, while the Senate is considering a judicial nominee, the Chair of the Senate (most likely Vice President Cheney) would make a ruling that filibusters on judicial nominees are unconstitutional. Presumably one of the Senate Democrats would object to this ruling, and the full Senate would hold a simple majority vote (only 51 votes needed) to uphold the ruling of the chair. This action would involve breaking the rules to change the rules. While changes in the Senate’s rules are allowed, they require a two-thirds majority vote. As we all learned in 2 nd grade it is not right to change the rules in the middle of the game. The Senate Republicans are risking the long term well-being of our democracy for temporary partisan gain now.

Despite claims by Senate Republicans, the use of the filibuster for judicial nominations is constitutional, has precedent in history and has been used appropriately in the past several years.

  • The filibuster is constitutionally legitimate. The Constitution does not say that a simple majority vote is required for Senate confirmation of a nominee, and it does not guarantee a vote on any nominee. Rather, Article I, Section 5 of the U.S. Constitution authorizes the Senate to determine its own rules of procedure, and Senate Rule XXII requires 60 votes to end debate on any legislation or nominations.
  • The use of the filibuster on judicial nominations has been judicious and appropriate. During President Bush’s first term, the Senate confirmed 204 of his federal court nominees, while Senate Democrats rejected only 10 of the most radical, out of the main stream nominees. While most of us know that a 95% approval rate is pretty impressive, President Bush is unwilling to settle for anything less than 100%. Further, President Bush has now appointed 24% of all active federal judges in just four years.
  • The allegation that judicial nominations have not been filibustered in the past is wrong. The filibuster has often been used to thwart presidential nominations, and occasionally even Supreme Court nominations. Since the first recorded instance in 1881, when Republicans were unable to end the filibuster of President Rutherford B. Hayes’ nomination of Stanley Matthews to the Supreme Court, there have been nine Supreme Court nominees who did not receive floor votes. Further, during the Clinton administration, Senate Republicans blocked over 60 of his judicial nominees – often through the actions of only one Senator rather than a substantial minority of 41 – by refusing to schedule committee hearings and delaying committee votes.

In addition to destroying Senate tradition, and disrupting our system of checks and balances, the “nuclear option” will have disastrous consequences for our democracy.

  • The “nuclear option” will set a dangerous precedent for legislation. The same arguments being used today to end the filibuster on judicial nominations can be used tomorrow to end filibusters on legislation.
  • Getting rid of the filibuster will drastically weaken the Senate’s constitutionally recognized duties of advice and consent. Our founding fathers assigned the Senate a co-equal role in the judicial appointment process. This role is mandated by the Constitution, supported by history, documented by constitutional scholars, and recognized by Republicans. As Republican Senator Strom Thurmond noted in opposing the 1968 nomination of Abe Fortas to be Chief Justice, “The President merely picks or selects or chooses the individual for a position of this kind, and the Senate has the responsibility of probing into his character and integrity, and into his philosophy, and determining whether or not he is a properly qualified person to fill the particular position under consideration at the time.” The filibuster is a critical tool for the minority party to fulfill their “advice” duty. Getting rid of the filibuster will reduce the Senate’s role to little more than a “rubberstamp” for President Bush’s judicial nominees.

This debate over the filibuster is not just about a few Circuit Court nominees it is about the future of the Supreme Court. With Chief Justice Rehnquist in poor health,and eight of the nine current justices over the age of 65, it is likely that there will be a vacancy on the Supreme Court in the next few months. The next appointment to the Supreme Court will have enormous implications for the future of justice in America. On issue after issue – civil rights, workers’ rights, reproductive rights, and environmental protections – the current Supreme Court is sharply divided. Just one vote on the Court could greatly expand the scope of our legal protections, or deprive us of the constitutional protections that we cherish.

For more information on the threat to the filibuster, please visit

Senator Frist and the Senate Republicans may trigger the “nuclear option” any day. Take action and urge your Senator to protect Senate tradition and save the filibuster!

Check out these recent articles on the filibuster and the nuclear option for more information:

Filibuster Vote Will Be Hard to Predict, By Charles Babington, The Washington Post, April 28, 2005

Senate GOP Sets Up Filibuster Showdown, By Charles Babington and Dan Balz, The Washington Post, April 22, 2005

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