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The "nuclear option" is an expression used in American politics in 2005 referring to a proposed change in the interpretation of the rules of the U.S. Senate. The new interpretation would allow a simple majority (51 out of 100) of Senators to end any filibuster blocking a judicial nomination. Under current Senate rules, a supermajority (60 senators) is required to break the filibuster (this is called a cloture motion). Once a filibuster has ended, judges can be confirmed by simple majority vote.

Republicans currently hold 55 seats, while Democrats hold 44 seats plus the vote of independent Jim Jeffords. Democrats filibustered to prevent a Senate vote to confirm several individuals nominated by President George W. Bush to fill vacancies in federal courts during Bush's first term and threaten to do so again. Republicans could use several possible methods to change the Senate rules, but it is probable that a Senator would appeal to the presiding officer to rule that filibusters of judicial nominees are unconstitutional. Only a simple majority would be necessary to approve such a ruling.

The nuclear option not only has an impact on the current nominees that have been filibustered by Senate Democrats, but also may directly impact nominations to the Supreme Court. In October 2004, Chief Justice William Rehnquist underwent throat surgery after being diagnosed with thyroid cancer. He is expected to leave the Supreme Court during Bush's presidency. Democrats assert that, if the nuclear option is enacted now, it will prepare the Senate for a partisan judge to be nominated by Bush and confirmed by 51 Republican senators. Republicans counter that it will merely enable judges who have majority support to be confirmed.

Grassroots movements on both side of the issue began heated campaigns to contact their Senators and urge action, and multimillion dollar advertising campaigns were planned to inform and persuade Senators and the public. Compromise offers began to circulate on both sides of the aisle, with Democrats offering to allow a floor vote on some of the nominees in exchange for a guarantee not to trigger the nuclear option in the future, and Republicans offering not to enact the nuclear option if Democrats refrain from filibustering nominees to appeals courts and the Supreme Court. No compromise has yet been reached.

Support

It is estimated that 45-52 senators will support the nuclear option, with Republicans claiming to have the votes to pass it. Vice President Dick Cheney has also expressed that he would vote in favor of the nuclear option if the vote came out a tie. Thus the motion would pass with 50 votes.

The Republican position is that the (threatened) filibuster of Bush's nominees effectively establishes a 60 vote threshold for approval of judicial nominees instead of the historical 50 vote standard. They contend that this standard has no historical basis, and that many existing justices would not pass this stricter standard. For example, existing Supreme Court Justice Clarence Thomas was confirmed in a 52-48 vote in 1991.

Republicans (and those who support the nuclear option) also argue the following:

• The U.S. Constitution does not specify a supermajority requirement for confirming judicial nominations (or other general legislation traditionally subject to filibuster), implying a simple majority would do. Therefore the nuclear option would restore the Senate's constitutional role of advising and consenting to the President's nominations with a simple majority.

• Clinton's nominees who did not get an up/down vote were held up in committee, held up via blue slip, or held up via other procedural means, all of which can be overruled by majority vote with a call for cloture. There are three nominees whom some Republicans discussed filibustering, but it is unclear whether this was a failed filibuster or merely a threatened filibuster(PDF file). There is also a confirmed exception in Lyndon B. Johnson's 1968 nomination of Abe Fortas, though Fortas was the subject of a breaking scandal and it is unclear whether he had majority support. Despite these possible exceptions, Republicans contend that the systematic filibuster of nominees with confirmed majority approval sets a new standard. They note that Democrats did not even filibuster President George H.W. Bush's controversial nomination of Clarence Thomas in 1991, even though Republicans would not have been able to muster the votes to overcome such a filibuster.

• Although Republicans blocked Clinton's judges when they were in the majority, Democrats are blocking Bush's judges while they are in the minority. Republican leaders argue this is without historical precedent, and is contrary to the will of the electorate.

• Several Democrats once opposed the filibuster on judicial nominees, and have only recently changed their views as they have no other means of stopping Bush's judicial appointees.

• While only 10 of Bush's 204 nominations have been filibustered, the vast majority of these were not appelate court nominees, and thus not of equal consequence. "President Bush's nominees to the circuit courts have the lowest confirmation rate since the Roosevelt administration at 69%. . . . The DC Circuit is the most important, and for that court, only 33% of President Bush's nominees have been confirmed."(PDF file)

• Republican pollster, Ayres, McHenry and Associates, found that 82 percent of registered voters believe that "well-qualified" nominees should receive a Senate vote.(both PDF files) (However, one of Bush's most controversial nominees, Janice Rogers Brown, was only rated as "qualified" by the American Bar Association rather than "well-qualified".) In contrast, the Democratic pollster, Westhill Partners, found that only 30 percent of Americans approve changing "the rules to require only 51 votes to end a filibuster — thereby eliminating the current system of checks and balances on the majority party." Both polls likely qualify as push polls.

• Pat Robertson, founder of Christian Coalition of America, James Dobson, founder of Focus on the Family, and several other prominent Christian conservatives have endorsed the nuclear option as a necessary means of getting conservative judges onto the bench. In a May 1, 2005 interview on ABC's 'This Week with George Stephanopoulos', Robertson affirmed his belief that Democratic judges are a greater threat to the U.S. than Al Qaeda, Nazi Germany or Civil War.

Opposition

With a Republican Administration and a simple majority of Republicans (55 of 100) in the Senate, opponents state that the nuclear option would effectively remove the Senate as a check and balance to the Administration's use of power. Rather than require the President nominate Judges who get broad support from both parties in the Senate (60 Senators), the nuclear option would allow the President to nominate partisan Judges supported only by 50 Republican Senators plus the Vice President who votes in the event of a tie. Some opponents have also alleged that the nuclear option is part of a plan to reduce the independence of the courts and make them more subservient to Congress. As of April, 2005, Republican presidents have appointed a majority of the judges in 10 of the 13 federal appeals courts, 7 of the 9 justices on the Supreme Court and every chief justice since the Truman administration.

In response to claims of "Senate obstructionism," Senate Minority Leader Harry Reid, D-Nev, pointed out that only 10 of 214 nominations by President Bush have been turned down. Former President Bill Clinton called Republican efforts to paint Democrats as obstructionist "a hoax" stating "The Republicans wouldn't even give a vote to 40 of my Court of Appeals judges... never mind all the others that they wouldn't have voted." George W. Bush has a better record of having his judicial nominees approved than any President in the past 25 years. One of Democrats' biggest complaints has been that more than 60 of President Clinton's nominees were bottled up in committee, leaving positions available for Bush to fill. (Republicans were the majority in the Senate for six of Clinton's eight years as President, 1994-2000, but they did not use their majority to defeat each candidate on the floor. Instead, they prevented a vote altogether.) On April 27, 2005, Former Vice President Al Gore said, "Their grand design is an all-powerful executive using a weakened legislature to fashion a compliant judiciary in its own image. ... What is involved here is a power grab."

Contested nominations

On December 13, 2000, President-elect George Bush gave a speech reaching out to Democrats, speaking of "bipartisan cooperation" saying, "The spirit of cooperation ... is what is needed in Washington, D.C." While Republicans argue that a "well-qualified" judge should get a vote, Democrats argue that if President Bush were dedicated to the "spirit of cooperation," then he would nominate Judges who were "well qualified" and were broadly supported in the Senate, making the nuclear option unnecessary. As a result of this partisan dispute, a confrontation is imminent. That confrontation drew closer when, on April 21, 2005, the Republican-controlled Senate Judiciary Committee endorsed two of President Bush's most controversial nominees to federal appellate court:

• Janice Rogers Brown. The Los Angeles Times calls Brown "A bad fit for a key court". Brown's alleged dogmatism and a style bordering on vituperation earned her only a qualified rather than well qualified rating from the American Bar Association. Some committee members found her unfit for the appeals court. The New York Times editorialized, "Brown's record as a judge is ... cause for alarm. She regularly stakes out extreme positions, often dissenting alone." People For the American Way President Ralph G. Neas described Janice Rogers Brown as the "far right's dream judge." . Justice Brown retained her seat on California's highest court in 1998 by a 76% majority. The Washington Times has questioned whether her views can reasonably be characterized as "extremist." Senate Minority leader Harry Reid said "She is a woman who wants to take us back to the Civil War days" in addtion to calling the nominees "bad people."

• Justice Priscilla Owen. The Houston Chronicle had characterized Owen as "one of the most conservative" justices on "Texas' Republican-dominated top court." Owen is part of a court that some have criticized for accepting campaign contributions from parties appearing before it—while its justices do not recuse themselves from those cases.(PDF file). The New York Times said Owen is "considered by legal analysts in Texas to be among the most conservative members of the Texas Supreme Court, which, in turn, is considered one of the nation's most conservative supreme courts." The Leadership Conference on Civil Rights (representing 180 national organizations) calls Owen a "judicial activist with a disturbing willingness to effectively rewrite or disregard the law."-- a charge that is disputed by one of her former colleagues on the Texas Supreme Court. Justice Owen received a unanimous rating of "well qualified" from the American Bar Association. In 2000, she was re-elected to the Texas Supreme Court with 84 percent of the vote.

Citing descriptions like "dogmatic" (American Bar Association), "extreme" (New York Times), and "activist judge" (CivilRights.org), Senate Democrats have vowed to fight Brown and Owen's confirmations to the courts.

Uncontested nominations

On May 9, 2005, Senate Democratic leader Harry Reid offered the Democrats' support for one of President Bush's judicial nominees, former Senate lawyer Thomas Griffith. as a goodwill gesture to show that Democrats are willing cooperate with Republicans and confirm "acceptable" nominees. Reid stated that Democrats "will only block unacceptable nominees" (such as Brown and Owen), but would confirm Griffith, saying "Let's take a step away from the precipice. Let's try cooperation, rather than confrontation."

Republican spokesman, Bob Stevenson, rejected the offer saying "Why stop at one? We should take them all up", signaling Republican's intent to use the nuclear option as an "all or nothing" weapon.

Legitimacy of filibustering judicial nominees

In response to claims that the filibuster of judicial nominees is unconstitutional, opponents point out that the Constitution requires supermajorities for actions such as treaty ratification and proposed constitutional amendments and is silent on what kind of vote is required for other matters. Instead, Article I, Section V of the Constitution permits and mandates that each house of Congress set up its own rules, and the filibuster rule is constitutional due to that clause. The Senate parlimentarian opposes the nuclear option. The parlimentarian is an ostensibly neutral staff member and is the appointed keeper of the Senate's rules. A Congressional Research Service report, updated April 2005, leaves little doubt that the nuclear option would not be based on previous precedents of the Senate.

Democrats state that Republicans were staunch supporters of the filibuster when they were a minority party and frequently employed it to block legislation. Arguments that a simple majority should prevail apply equally well to all votes where the Constitution does not specify a supermajority; however the current Republican leadership insists the proposed rule change only affect judicial nominations. Republicans also state that there is a difference between the filibustering of legislation -- which affects only the Senate's own business -- and the filibustering of a President's judicial or executive nominees.

Republican Senators, including Bill Frist himself, have filibustered in the past to block judicial nominees:

• In 1996, Clinton nominated Judge Richard Paez to the 9th Circuit of the United States Court of Appeals. Conservatives in Congress held up Paez's nomination for more than four years, culminating in an filibuster on March 8, 2000, which failed when only 14 Republicans approved it. Bill Frist was among those who voted to filibuster Paez . Paez was ultimately confirmed.

• In 1968, Republican Senators led a four-day filibuster and successfully blocked Lyndon Johnson's nomination of Abe Fortas to be elevated from Associate Justice of the Supreme Court to Chief Justice of the United States. Some Republicans now claim this nomination would have likely failed on a simple up or down vote, but there is no way to know since such a vote was prevented by the filibuster. The Democrats controlled the Senate and Johnson was known for his legislative skills. On the other hand, unlike the current filibusters of President Bush's nominees, the filibuster of Justice Fortas enjoyed bipartisan support. A cloture motion to move the nomination to a floor vote did get a simple majority, but nowhere near the 66 votes then needed to end debate. Voting against cloture were 24 Republicans and 19 Democrats. Republicans also point out that the filibuster of Justice Fortas was justified by the filibusterers as based on his alleged ethics violations, and that the allegations of ethical improprieties actually led to his resignation from the Supreme Court.

The Fortas filibuster marked the first use of this tactic against a judicial nominee in U.S. history. It was the only successful judicial filibuster until the Democrats use of the tactic against Bush nominees. Before the Fortas filibuster -- and after it as well, until George W. Bush's presidency -- the Senate would defer to a president's wishes on court appointments, even when it was controlled by the other party. Since the Fortas precedent, both parties have fought appointments in the Senate, but none had actually been filibustered again until the Republicans revived the tactic in 1996. When President George W. Bush took office there were dozens of federal court vacancies that President Clinton had been unable to fill them due to Republican blocking of his nominees. For the most part, Republicans did not rase objections to those judicial candidates; they simply refused to hold hearings on the nominations. Republicans held a majority in the Senate during the last 6 years of the Clinton administration, and Democrats claim that tbe Republican confirmation of Clinton's nominees was far worse that what happened during any previous Republican presidency with a Democrat-controlled Senate.

Republican opposition

Not all Republicans support the nuclear option:

• Senator Arlen Specter (R-Pa) stated "I'm going to exercise every last ounce of my energy to solve this problem without the nuclear option. If we have a nuclear option, the Senate will be in turmoil, and the Judiciary Committee will be hell." It is unclear whether Specter would support the nuclear option if it came to a floor vote.

• Senator John McCain (R-Arizona) said he is opposed to doing away with the filibuster.

• In all, 8 of 55 Republican Senators are considered possible "Nay" votes. The undeclared are Mike DeWine (Ohio), John Sununu (New Hampshire), Chuck Hagel (Nebraska), Susan Collins (Maine),Lisa Murkowski (Alaska) Arlen Specter (Pennsylvania), and John Warner (Virginia). The confirmed Nays are Lincoln Chafee (Rhode Island), Olympia Snowe (Maine) (has done everything short of explicitly stating she would oppose the action), and John McCain (Arizona). No Democrats are expected to support the action, with the possible exception of Ben Nelson.

Possible consequences

According to an editorial by Michael Crowley, "a senator always has the power to stand up and raise a procedural objection that requires a majority vote to dismiss... could start raising nonstop objections... Frist would have to keep 51 friendly senators near the Senate floor to accomplish anything." Crowley, however, is skeptical that Democrats will actually "shut down the government." According to Senate Democratic leader Harry Reid's spokesman Jim Manley, Democrats are unwilling to let necessary government functions fail by blocking their budgets, as some National Parks closed in 1995, so Crowley concludes that Democrats would have few good "targets" for retaliation.

An aide to a Democrat on the Senate Judiciary Committee offered an alternative strategy: hijacking the agenda by proposing bills in large numbers of their own. "It would be great to have eight to ten bills we could do over and over again and just sort of drill the Democratic agenda into the public's head... Every time they bring up a corporate relief bill, we'd bring up a minimum wage bill. Every time they bring up a bankruptcy bill, we'd bring up a health care bill. I think that's a better strategy than objecting every five seconds and adjourning every five seconds."

Protests

On the Princeton University campus, outside the Frist Campus Center (named for Senator Bill Frist's family) students staged a protest against the nuclear option by "filibustering" for over 300 hours. The protest began on April 26, 2005. The protestors have since gone to Washington DC to continue their non-stop "filibuster".

At Carleton College, students organized Keep Talking '05, a nonstop 100-hour filibuster to save the filibuster. The event was run from April 18-22, 2005, and also included a petition and Senate call-in drive.

Students at Yale University organized a 4-hour filibuster and call-in to Senate offices on May 4, 2005.

Students at Harvard University planned a 25-hour filibuster from May 10-11, 2005.

Students at Stanford University organized a 49-hour filibuster started at noon May 11, 2005.

Vocabulary

The term "nuclear option" was used at least as early as May 2003, by Republican Senator Bill Frist (Washington Times, May 10, 2003, "Judicial filibuster rule change faces high hurdle in Senate," Charles Hurt). Subsequently, Senator Trent Lott used the term "nuclear option" in an interview with the Clarion Ledger.

The maneuver was originally called a "nuclear option" because it was seen as a last resort with possibly catastrophic consequences for both sides. The term's association to nuclear war is intended to suggest the maneuver being a 'last resort', as well as the extreme consequences some people think the rules change would produce.

"The Constitutional option", or "The Byrd option" were also floated as terms by Republicans, the latter being meant to emphasize the claim that Senator Robert Byrd (a Democrat from West Virginia) had several times changed Senate precedents via majority vote.

 The Democratic Party denies this charge, arguing that Byrd only clarified and enforced existing rules.  

History

There is a long history of contentious disputes over the rules based tactics used to delay or block floor votes in the United States Congress. Established procedures have been overturned at several points in the history of both Houses.

In the House of Representatives, the filibuster (the right to unlimited debate) was used until 1842, when a permanent rule was adopted, limiting the time of debate. The disappearing quorum was a tactic used by the minority until 1890, when this technique to prevent a quorum was eliminated. As the membership of the House grew much larger than the Senate, the House has acted earlier to control floor debate and the delay and blocking of floor votes.

When the First US Senate met in 1789, the filibuster was not an option. The Senate adopted rules allowing them "to move the previous question," ending debate and proceeding to a vote. In 1806 this rule was eliminated, making it possible for the filibuster to be used for the delay and blocking of floor votes, since this left no mechanism for terminating debate. The first actual use of the filibuster on the Senate floor occurred in 1837. A rule allowing for the cloture of debate (ending a filibuster) was first adopted in 1917. In 1917 the cloture vote requirement was two-thirds of Senators present. This was changed to two-thirds of the total membership in 1949, then to two-thirds of those present and voting in 1959. In 1975, the cloture requirement was lowered to three-fifths of total membership, the current rule. There was another type of filibuster used in the Senate (the post-cloture filibuster—using points of order to consume time, since they are not counted as part of the limited time provided for debate) which was eliminated as an effective delay technique by a rule change in 1979.

See also

• filibuster

External links

Opposed to the nuclear option

• Home Page for Senate Democratic Leader Harry Reid (D-Nev)
• Senator Reid's Letter to Bill Frist
• Former Vice President Al Gore Slams GOP's Efforts To End Filibuster
• Princeton Filibusters in Support of the Filibuster
• Independent Judiciary
• CivilRights.org: a coalition representing 180 national organizations
• Save the Filibuster
• Save Phil (A Buster)
• Washington Post article on Republican's 1968 Fortas filibuster
• Filibusterfrist.com: Coverage of college students' protests against the nuclear option

In Support of the nuclear option

• Home Page for Senate Republican Leader Bill Frist (R-TN)
• Senator George Allen (R-VA) Calls Democrats Bluff
• Confirm Them

Other

• Article in Harvard Journal of Law & Public Policy -- Article on the history of the constitutional option, showing that it is firmly grounded in Senate history (PDF file)
• Hatching a New Filibuster Precedent - The Senator from Utah's Revisionist history

John Dean writes for FindLaw on Orrin Hatch attempting to mischaracterise the Abe Fortas nomination filibuster.

• TIME Magazine: The Filibuster Formula
• History of U.S. Senate Committee on Rules and Administration
• History of U.S. House Committee on Rules

• Current events
• Politics of the U.S.
• 2005 in politics
• Parliamentary procedure