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The nuclear option is a phrase used to refer to a proposed change in the U.S. Senate rules to prevent the filibuster of judicial confirmations. Along with the term Constitutional option, it is an American political code word used during 2005 judicial confirmation political fight.

Currently, Senate rules allow any member to prevent a confirmation vote of a Presidential appointee by staging a filibuster. The filibuster can be overridden by a three-fifths majority (60 out of 100 senators) vote via a cloture motion. The nuclear option would allow a simple majority (50 out of 100 senators, plus the Vice President in the case of a tie) to end a judicial filibuster. Once cloture is achieved, the nominee would be confirmed or rejected by a simple majority vote.

Republican Senate Majority Leader Bill Frist (R-Tenn) threatened to implement the nuclear option in response to what he called Democratic "obstructionism". At the time, Democrats had blocked the nomination of 10 of Bush's nominees.

Former Democratic Vice President Al Gore called the nuclear option a Republican "power grab". In the 2005 Senate, Republicans held 55 seats, Democrats 44 and Independents held one. The nuclear option would allow 51 Republican Senators to hand confirmation power to themselves.

In May 2005, Senator John McCain (R-AZ) and Senator Ben Nelson (D-NE) organized a moderate block of fourteen Senators (7 Republican and 7 Democrat) to sign a memo of understanding stating they would vote for cloture on three of Bush's nominees and would resist attempts to implement the nuclear option. Their memo said, in part: "We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration."

The nuclear option would affect nominees to U.S. district, appellate and the U.S. Supreme Court, all of which are lifetime appointments. As Chief Justice William Rehnquist is expected to step down during President Bush's presidency, Bush's nomination to replace him could be confirmed by such a simple majority.

After the resignation of moderate Justice Sandra Day O'Connor, announced July 1, 2005, the nuclear option has become a more likely plan to appoint a more conservative justice in her place.

A Change to Senate Rules

Senator Ted Stevens first suggested using a ruling of the chair to defeat a filibuster of judicial nominees in February 2003. The code word for the plan was "Hulk." Weeks later Sen. Trent Lott coined the term nuclear option. The maneuver was called the 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 the rules change would produce.

Although the Senate's rules can normally only be changed by a two-thirds (67) vote, it was proposed to rise to a point of order that filibusters of judicial nominees are unconstitutional and/or otherwise improper. The Senate's presiding officer, normally the Vice President, could then rule on the point of order. Presumably Vice President Dick Cheney would be expected to sustain. The Democrats could then appeal the decision of the chair, a motion which the Republicans would immediately move to lay on the table. A motion to lay on the table is non-debatable, and would only require a simple majority vote to sustain the ruling of the chair. With success, Republicans would establish a precedent that judicial filibusters are out of order.

The legality of the nuclear option has been challenged. The Senate parliamentarian, Alan Frumin, was appointed by Sen. Lott. Furmin is an ostensibly neutral staff member and appointed keeper of the Senate's rules, and is opposed to the nuclear option. It's been reported that a Congressional Research Service report "leaves little doubt" that the nuclear option would not be based on previous precedents of the Senate.

Historical Backdrop

For more on the history of the Filibuster in U.S. politics see Filibusters in the U.S. Senate.

The Senate has many ways to frustrate a Presidential appointment other than the filibuster; there is no Constitutional or legal requirement for the Senate to actually hold an up-or-down vote on judicial nominees. A group of Senators may tie up the vote in the Judiciary Committee indefinitely by various means, or actually vote it down; the vote can be tabled or otherwise delayed on the floor; holds can be obtained; and a filibuster can be conducted, among other tactics.

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. The Democrats were the majority party at the time, and made a cloture motion to move the nomination to a floor vote. It 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 cite the 19 Democratic votes as evidence of bipartisan support for the filibuster. Democrats point out that all 19 were from the bloc of southern Democrats (the so called Dixiecrats) that had teamed with Republicans to filibuster civil rights legislation in the 1960s.

There are nominees who have been threatened with a filibuster, but these nominees did eventually get a vote. Democrats did not filibuster President George H.W. Bush's controversial nomination of Clarence Thomas in 1991. Republicans almost certainly would not have been able to muster the votes needed to overcome such a filibuster.

Clinton administration

In 1995, Democrats held the White House and a majority of the Senate. The New York Times editorialized, "The U.S. Senate likes to call itself the world's greatest deliberative body. The greatest obstructive body is more like it. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This (is a) relentless abuse of a time-honored Senate tradition . . . . Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes." There was no attempt to rewrite Senate rules for confirmation at that time.

In 1996, then President 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 with a simple majority.

George W. Bush administration

When President George W. Bush took office there were dozens of federal court vacancies, which Democrats contend Pres. Clinton had been unable to fill due to Republican blocking of his nominees. Republicans held a majority in the Senate during the last 6 years of the Clinton administration. Democrats assert that, for the most part, Republicans did not raise objections to those judicial candidates, but simply refused to hold hearings on the nominations. Further, that the Republicans' record in the confirmation of Clinton's nominees was far worse that what happened during any previous Republican presidency with a Democrat-controlled Senate.

One of the arguments made by Republicans opposed to the nuclear option was that sooner or later, history dictates that Democrats will return to the majority. Thus the GOP will eventually need tools like the filibuster to block the appointment of an extremist judge for the Democratic party.

Lines are Drawn

In March 2001, President Bush announced that the administration will no longer seek the American Bar Association’s evaluations of federal judicial candidates, ending a tradition started by Eisenhower in 1953. Despite this, the ABA’s committee continues to provide the public service. Democratic senators all favor the ABA input.

During his first term, President Bush nominated 46 people to federal appeals court seats, of which 36 were confirmed. Democrats blocked the confirmation of 10 nominees, on the grounds that they were too "out of the mainstream" for a lifetime appointment. At the beginning of his second term, Bush resubmitted seven of the 10 names. Senate Minority Leader Harry Reid (D-Nev.) vowed to fight their confirmation. Senate Majority Leader Bill Frist threatened to use the nuclear option to get them confirmed.

"Extremist" Judges

In April 2005, Democrats were blocking the confirmation of 7 nominees, all of whom Democrats claimed were too extreme for a lifetime appointment. President Bush's most controversial nominees were Janice Rogers Brown and Priscilla Owen. Citing descriptions like "dogmatic" (American Bar Association), "extreme" (New York Times), and "activist judge" (CivilRights.org), Senate Democrats, in April 2005, had vowed to fight Brown and Owen's confirmations to the courts.

Opposition: 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." . Senate Minority leader Harry Reid said "She is a woman who wants to take us back to the Civil War days" A list of over 100 organizations that oppose Brown's confirmation is given here.
Support: Supporters counter that Brown has opposed racial profiling () and won election and then re-election (with 75% of the vote) to the Supreme Court of California. Supporters also argue that Justice Brown's record of judicial decisions cannot support a characterization of her views as "extremist," and that her record evinces a sensitivity to civil rights. In 2000, she followed the Supreme Court's lead in Adarand Constructors, Inc. v. Mineta, striking down a San Jose city ordinance requiring government contractors to solicit bids from companies owned by women and minorities, demonstrating her opposition to affirmative action.
Opposition: The Houston Chronicle 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 list of 60 organizations that oppose Owen's confirmation is given here
Support: Greg Abbott, attorney general of Texas and a former justice on the Texas supreme court, disputes the above charge from the Leadership Conference on Civil Rights. 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% of the vote.

Nuclear Option Readied

Under pressure by the White House and social conservatives, Senate Majority Leader Bill Frist signaled his readiness to pull the trigger on the 'nuclear option' to push through Bush's appellate court choices blocked by the Democrats' threat of filibuster.

In the United States Senate, Republicans hold 55 seats, Democrats 44 and Independents hold one (as of 2005).

Republican pollster Ayres, McHenry and Associates found that 82 percent of registered voters believe that "well-qualified" nominees should receive an up or down vote. An Associated Press-Ipsos poll released May 20, 2005, found 78 percent of Americans believe the Senate should take an "assertive role" examining judicial nominees rather than just give the president the benefit of the doubt. 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."

Political Motivations

Many Democrats view Frist's threats to push the nuclear option button to be more about his plan to run for president in 2008 than about the qualifications of the few nominees currently blocked in the Senate. Quoting from Slate.com:

Frist has made clear he will give up his Tennessee Senate seat in 2006, keeping his pledge to serve just two terms and leaving himself free to campaign for president. He has begun to court his party's conservative base. By pouncing on Arlen Specter after the November election to demand that the Pennsylvania senator pledge his support for the president's judicial nominees as prospective head of the Senate judiciary committee, Frist made an obvious overture to Christian conservatives.

Pat Robertson, founder of Christian Coalition of America 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', Pat Robertson said that Democratic judges are a greater threat to U.S. unity and stability than Al Qaeda, Nazi Germany or Civil War. On Sunday, April 25, 2005, Family Research Council sponsored "Justice Sunday" featuring Bill Frist - a 90-minute simulcast over Christian radio and television networks enthusiastically supporting the nuclear option. In January 2005, Dr. James C. Dobson, head of the Focus on the Family, threatened six Democratic senators if they block conservative nominees. On May 24, 2005, after the compromise negotiated between 14 Senators was announced, Dobson, said the agreement "represents a complete bailout and a betrayal by a cabal of Republicans and a great victory for united Democrats."

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 two weeks non-stop, beginning on April 26, 2005. Other protests took place at Carleton College, Yale University, Harvard University, Stanford University and Iowa State University. Students at the University of South Carolina organized a counterprotest "point of order" in support of ending judicial filibusters on May 20, 2005.

Obstruction and a "Power Grab"

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.) 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."

Democratic Proposal

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. Democrats cited this offer as a goodwill gesture to show that they 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." Republicans contended that the Democrats' offer was empty, since the Democrats would have retained the discretion to block any of President Bush's future nominees that they deemed "extremist," even when those nominees enjoyed the support of all Republican Senators. Thus, that Reid's offer did not resolve the problems that led to consideration of the nuclear option in the first place. Republicans also contend that the Democrats' judicial filibusters have already killed three of President Bush's Court of Appeals nominations (Miguel Estrada, Charles Pickering, and Carolyn Kuhl), as those judges withdrew their nominations rather than continue to fight the filibuster.

Republican Counter-Proposal

Senate Majority Leader Bill Frist (R-Tenn) floated a Republican counter-offer. In exchange for ending the filibuster against judicial nominees, the Republicans offered to end the practice of bottling up appellate-court nominees in committee (a nod to President Clinton's nominees who were denied floor votes), and to guarantee up to 100 hours of debate on each nomination. Minority Leader Reid rejected that offer calling it, "a big wet kiss to the far right."

Critical Mass

On Friday, May 20th, a cloture vote for the nomination of Janice Rogers Brown was rescheduled for Tuesday, May 24th. The failure of this cloture vote would be the beginning of the nuclear option, immediately followed by the asking for the ruling of the Chair on the Constitutionality of the Filibuster. On May 23, 2005, Majority Leader Frist called for a vote on Priscilla Owen. This threatened to trigger the nuclear option.

Moderates and the "Gang of 14"

Senator John McCain (R-AZ) and Senator Ben Nelson (D-NE) reached out to a number of colleagues on both sides to compromise by winning confirmation of some of the disputed nominees (Janice Rogers Brown, William Pryor, and Priscilla Owen) while preserving the judicial filibuster. Their efforts succeeded on the evening of May 23, 2005, one day before the cloture vote. They announced an agreement by seven Republican and seven Democratic Senators to avert a vote on the nuclear option while preserving the filibuster for "extraordinary circumstances". The moderate block of Senators that agreed to the compromise included, Lindsey Graham, John Warner, Olympia Snowe, Susan Collins, Mike DeWine and Lincoln Chafee for the Republicans. Joe Lieberman, Robert Byrd, Mary Landrieu, Daniel Inouye, Mark Pryor and Ken Salazar for the Democrats. This group was quickly dubbed "the Gang of 14" in various blogs and news outlets.

The bipartisan group was large enough to prevent the nuclear option from succeeding, and also large enough to reach cloture on a Democratic filibuster. It states, in part:

..we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

As a result of this agreement, Priscilla Owen was confirmed 55-43, Janice Rogers Brown was confirmed 56-43, and William Pryor was confirmed 53-45.

Differing Standards for Consent

The arguments for or against the nuclear option are essentially over whether a simple majority (51/100) of the Senate should be able to confirm a judicial nominee, or whether a three-fifths vote (60/100) should be required, as required for passage of a large amount of Senate business.

A Simple Majority

The U.S. Constitution does not explicitly require either a two-thirds or three-fifths majority vote for confirmation of nominees. Supporters of this standard believe it implies that a simple majority is sufficient; they contrast this against the Constitution's language for Senate confirmation of treaties, which appears within the same clause, explicitly requiring a two-thirds majority. Art. II, Sect. 2, Cl. 2

Therefore, supporters argue that the nuclear option would bring current rules in line with the framers' original intent. Because of this, many supporters now prefer to call the nuclear option the "constitutional option". They argue that the filibuster of Bush's nominees effectively establishes precedent for a 60 vote threshold for approval of judicial nominees instead of the 50 vote standard required by an up-or-down vote. A number of existing Judges and Justices were confirmed with less than 60 votes, including Supreme Court Justice Clarence Thomas (confirmed in a 52-48 vote in 1991).

However, opponents of the nuclear option point to Senator Bill Frist's vote to filibuster Paez in 2000 as evidence that Frist does in fact support the idea of a 60-vote threshold when it suits him. When a vote for cloture on the confirmation of Paez was called, 14 Senators voted to continue the filibuster, including Frist.

Three-Fifths Majority

Currently, Republicans hold 55 of 100 seats in the Senate, and Democrats claim the nuclear option is an attempt by Senate Republicans to hand confirmation power to themselves. Rather than require the President nominate someone who will get broad support in the senate, the nuclear option would allow Judges to not only be "nominated to the Court by a Republican president, but also be confirmed by only Republican Senators in party-line votes."

Of the 9 U.S. Supreme Court Justices seated as of May 2005, 6 were confirmed with the support of 90 or more Senators, 2 were confirmed with at least the support of 60 senators, and only 1 (Thomas) was confirmed with the support of less than 60 Senators. In contrast to this broad, bipartisan support, Bush's more controversial nominees were confirmed by a narrow majority along party lines. Priscilla Owen was confirmed 55-43, Janice Rogers Brown was confirmed 56-43, and William Pryor was confirmed 53-45.

Name Date Confirmed/Elevated Senate Vote reference
June 2005 Supreme Court Justices
Rehnquist September 17, 1986 65-33
Stevens December 17, 1975 unanimous
O'Connor September 21, 1981 unanimous
Scalia September 17, 1986 unanimous
Kennedy February 3, 1988 unanimous
Souter October 2, 1990 90-9
Thomas October 15, 1991 52-48
Ginsburg August 3, 1993 97-3
Breyer July 29, 1994 87-9
Bush nominees
Priscilla Owen May 25, 2005 55-43
Janice Rogers Brown June 8, 2005 56-43
William H. Pryor June 9, 2005 53-45

The text of the Constitution requires a two-thirds majority in the Senate for confirming treaties, expelling one of its members, and concurring in the proposal of Constitutional Amendments . In all other matters, the Constitution gives the Senate the power to make its own rules. Starting with the first Senate in 1789, the rules left no room for a filibuster; a simple majority could move to bring the matter to a vote. However, in 1806, the rule allowing a majority to bring the previous question ceased to exist. The filibuster became possible, and since any Senator could now block a vote, 100% support was required to bring the matter to a vote. A rule change in 1917 introduced cloture, permitting a two-thirds majority to end debate, and a further change in 1975 reduced the cloture requirement to three-fifths. Supporters of the right to filibuster argue that the Senate has a long tradition of requiring broad support to do business, due in part to the threat of the filibuster, and that this protects the minority.

Other Controveries

Advice and Consent

Supporters of the nuclear option claim that Democrats are obstructing the approval of the president's nominees in violation of the intent of the U.S. Constitution. President Bush has nominated forty-six candidates to federal appeals courts. Thirty-six had been confirmed. 10 were blocked and 7 were renominated in Spring 2005. Democrats point out that 63 of President Clinton's 248 nominees (40 of which were federal appeals court nominees) were blocked via procedural means at the committee level, denying them a confirmation vote and leaving the positions available for Bush to fill.

Opponents contend that Article II, Section 2, of the U.S. Constitution says the president "shall nominate, and by and with the Advice and Consent of the Senate, ... shall appoint Judges..." and that the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations.

Polling indicates public support for an active Senate role in this "advice and consent" capacity. An Associated Press-Ipsos poll released May 20, 2005, found 78 percent of Americans believe the Senate should take an "assertive role" examining judicial nominees rather than just give the president the benefit of the doubt. 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."

The agreement to stave off the "nuclear option" reached by 14 moderate Senators supports a strong interpretation of Advice and Consent from the Constitution. (pdf):

We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the president's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

A Larger Plan?

Some also believe 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.

Legitimacy of Filibustering Judicial Nominees

In response to claims that the filibuster of judicial nominees is unconstitutional, opponents point out that the Constitution requires two-thirds majorities 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. Republicans counter that the fact that the Constitution's Appointment's Clause does not impose a three-fifths majority requirement for the Senate's "advice and consent" function in considering the President's judicial (and executive branch) nominees is, itself, evidence that the Framers consciously rejected such a requirement. Republicans also state that the general rule in Parliamentary systems "is that majorities govern in a legislative body, unless another rule is expressly provided."

Republicans point out that 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.

Republicans were staunch supporters of the filibuster when they were a minority party and frequently employed it to block legislation and judicial appointments. Republicans continue to support the filibuster for general legislation--the current Republican leadership insists the proposed rule change only affect judicial nominations. According to the Democrats, arguments that a simple majority should prevail apply equally well to all votes where the Constitution does not specify a three-fifths majority. Republicans state that there is a difference between the filibustering of legislation -- which affects only the Senate's own constitutional prerogative to consider new laws -- and the filibustering of a President's judicial or executive nominees, which arguably impinges on the constitutional powers of the Executive branch.

See Also

External Links

Opposed to the Nuclear Option

Myth & Fact Sheets

Support of the Nuclear Option

Myth & Fact Sheets

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