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This article is about U.S. legislative procedure. For information about the use of nuclear weapons, see Nuclear warfare.

The nuclear option, usually called the "constitutional option," and sometimes the "Byrd" option, is a method by which changes can be made to the standard parliamentary procedure of the United States Senate by a simple majority vote, contrary to the requirements of the written rules.

Although the parliamentary maneuver now dubbed the "nuclear option" has been used in the past, notably by Robert Byrd in 1977, 1979, 1980, and 1987, when he was Democratic majority leader[1], it has been brought to prominence and given its name by the present Republican majority's threat to invoke it in order to end filibusters on President Bush's judicial nominees. The nuclear option would affect nominees to U.S. district, appellate, and Supreme courts, all of which are lifetime appointments. Republican Senate Majority Leader Bill Frist (R-Tenn.) stated that he was prepared to use the option if the Democrats attempted to filibuster Bush's nomination of Samuel Alito to the Supreme Court. In the event, the showdown did not occur as the Senate voted 72-25 to cut off debate.

A Change to Senate Rules

Because Senate rules require a 60 vote majority to end debate under most circumstances, a minority of 41 senators can prevent a final vote on most items of business, thereby effectively defeating the proposed action. This is known as a filibuster. Formal changes to the Senate's rules are even more difficult to make: it requires a two-thirds majority to end debate on a proposed rules change (67 votes if all senators are present). The nuclear option is "nuclear" because it allows a simple majority of senators (51) to circumvent these rules, end debate, and force a final vote on the filibustered business.

The details of the nuclear option are somewhat arcane. Parliamentary procedure in the Senate is governed both by written rules and procedural precedents. A precedent is established when the Senate makes a decision regarding what its standard parliamentary procedure is to be in a given circumstance. The precedent then governs procedure on all the subsequent occasions when the same circumstance arises. Precedents have the power of rules, but are not written. Some procedural precedents interpret or modify the written rules, occasionally even in ways contrary to the plain meaning of the rules' text.

A point of order is a parliamentary motion used to remind the body of its written rules and established precedents, usually when a particular rule or precedent is not being followed. When a senator raises a point of order, the presiding officer of the Senate immediately rules on the validity of the point of order, but this ruling may be appealed and reversed by the whole Senate. Ordinarily, a point of order compels the Senate to follow its rules and precedents; however, the Senate may choose to vote down the point of order. When this occurs, a new precedent is established, and the old rule or precedent no longer governs Senate procedure. Similarly, it is possible to raise a point of order and state that the standard procedure of the Senate is actually different than the current rules and precedents suggest. If this point of order is sustained, a new precedent is established, and it controls Senate procedure going forward.

Any senator can appeal the presiding officer's ruling on a point of order. This appeal is subject to debate, meaning that the Senate can discuss whether or not the point of order should be sustained. A motion to table the appeal (that is, to set it aside), however, is not debatable: it requires an immediate vote. This makes the nuclear option possible.

The nuclear option would begin with a filibuster or other dilatory tactic by the minority. A senator from the majority would then raise a point of order saying that the filibuster or dilatory tactic is not permissible in this circumstance. The presiding officer would rule in favor of the point of order. The minority would appeal the ruling, thereby opening debate on the point of order. The majority would then move to table the appeal. A vote on tabling would follow immediately. The majority would prevail with 51 votes, ending the appeal and thereby sustaining the point of order and establishing a precedent. The filibuster or dilatory tactic would thereafter be barred by the new precedent.

Historical Backdrop

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

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.[2] 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 Conservative Coalition) that had long opposed civil rights legislation. Republicans also point out that this filibuster lasted only four days.

There have been nominees who might have been filibustered, but were not. [3][4][5] 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 Appointments: 1993-2000

In 1995, Democrats held the White House. 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, President William J. Clinton nominated Judge Richard Paez to the Ninth Circuit of the United States Court of Appeals. Conservatives held up Paez's nomination for more than four years, culminating in a filibuster on March 8, 2000, which failed when only 14 Republicans approved it. Frist was among those who voted to filibuster Paez.[6] [7] [8] Paez was ultimately confirmed with a simple majority.

Bush Appointments: 2001-2006

When George W. Bush took office there were dozens of federal court vacancies, which Democrats contend Clinton had been unable to fill due to Republican obstruction. Republicans held a majority in the Senate during the last six years of the Clinton administration and controlled who would be voted on. 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 might need tools to block the appointment of what they might consider to be an extremist judge for the Democratic party.

Lines are Drawn

In the 2005 Senate, Republicans held 55 seats, Democrats 44 and an Independent held one. Confirmation requires a plurality of votes, and the Republicans could easily confirm their nominees if brought to a floor. Earlier in 2005, Democrats had blocked the nomination of 10 of George W. Bush's nominees, saying they were too conservative and that Republicans had blocked many of their nominees back in the 1990s. Republican Senate Majority Leader Bill Frist (R-Tenn.) then threatened to use the nuclear option in response to what he called Democratic "obstructionism". Democrats warned that if Frist used the nuclear option they would shut down the Senate so that no business of any sort could be transacted. To break the impasse senators John S. McCain III (R-Ariz.) and E. Benjamin Nelson (D-NE) organized a moderate bloc of fourteen senators (7 Republicans and 7 Democrats), commonly known as the Gang of 14. They signed a memo of understanding that undercut the ability of either Frist or the Minority Leader to have the votes they needed. Democrats in the Gang agreed not to filibuster (save in "unusual" circumstances) and Republicans in the Gang agreed not to vote for the nuclear option (save in "unusual" circumstances). The result was the Democrats did not have the 41 votes they needed for a filibuster, and Frist did not have the 50 votes he needed to change the rules. Frist reluctantly approved the compromise, and the blocked nominees were brought to the floor, voted upon and approved.

In March 2001, President Bush announced that the administration would no longer seek the American Bar Association's evaluations of federal judicial candidates, ending a tradition started by Eisenhower in 1953. [9] Despite this, the ABA's committee continues to provide the public service.[10] Democratic senators all favor the ABA input.[11]

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 Frist threatened to use the nuclear option to get them confirmed.

Senator Ted Stevens (R-Alaska) 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 (R-Miss.) coined the term nuclear option.[12] The maneuver was called the nuclear option because it was seen as a last resort with possibly major consequences for both sides.

The legality of the nuclear option has been challenged. The Senate parliamentarian, Alan Frumin, was appointed by Senator Lott. Furmin is an ostensibly neutral staff member and appointed keeper of the Senate's rules, and is opposed to the nuclear option.[13] 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.[14]

"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. [15] Citing descriptions like "dogmatic" (American Bar Association[16]), "extreme" (New York Times[17]), and "activist judge" (CivilRights.org[18]), 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.[19] The New York Times editorialized, "Brown's record as a judge is ... cause for alarm. She regularly stakes out extreme positions, often dissenting alone."[20] People for the American Way President Ralph G. Neas described Janice Rogers Brown as the "far right's dream judge." [21]. Senate Minority leader Harry Reid said "She is a woman who wants to take us back to the Civil War days" [22] A list of over 100 organizations that oppose Brown's confirmation is given here.
Support: Supporters counter that Brown has opposed racial profiling ([23]) and won election and then re-election (with 75% of the vote) to the Supreme Court of California. [24] Supporters also argue that Justice Brown's record of judicial decisions cannot support a characterization of her views as "extremist," [25] [26] and that her record evinces a sensitivity to civil rights. [27] 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. [28]
Opposition: The Houston Chronicle characterized Owen as "one of the most conservative" justices on "Texas' Republican-dominated top court."[29] 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.[30](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."[31] 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."[32] 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. [33] Justice Owen received a unanimous rating of "well qualified" from the American Bar Association. [34] 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.[35]

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.[36] 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.[37] 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." [38]

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. [39] 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. [40] 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.[41] [42] In January 2005, Dr. James C. Dobson, head of the Focus on the Family, threatened six Democratic senators if they block conservative nominees. [43] 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." [44]

Protests against the nuclear option took place on numerous college campuses; 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 simulating a filibuster for two weeks non-stop, beginning on April 26, 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. [45] 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. [46] 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. [47] (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.[48] 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.[49]

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."[50]

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.

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. [51] 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".[52] The block of senators who agreed to the compromise included Republicans Lindsey O. Graham, John Warner, Olympia Snowe, Susan M. Collins, R. Michael DeWine and Lincoln Chafee; from the Democratic party, Joseph I. Lieberman, Robert C. Byrd, Mary Landrieu, Daniel Inouye, Mark Pryor and Ken Salazar participated. 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.

The arguments for or against the nuclear option are essentially over whether a simple majority (51/100) (or 50/100 with the Vice President breaking the ties) 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 or 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 [53][54][55] for approval of judicial nominees instead of the 50 vote standard required by an up-or-down vote. [56] A number of existing Judges and Justices[57] were confirmed with fewer than 60 votes, including Supreme Court Justice Clarence Thomas (confirmed in a 52-48 vote in 1991).[58]

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.[59] They also argued that the term "advice and consent" is vague and does not specify a need for an up or down vote.

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." [60] [61]

Republicans retort that they have been winning the elections and in a democracy the winners rule, not the minority, and that the Constitution has several supermajorities (such as 2/3 needed to ratify a treaty), and that the Founders did not put in a 3/5 or any supermajority for confirmations. That is the Republicans claim that the Constitution has always assumed a majority vote for confirmations, and that "advise and consent" is a positive mandate for holding a vote.

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 fewer 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 [62]
Stevens December 17, 1975 unanimous [63]
O'Connor September 21, 1981 unanimous [64]
Scalia September 17, 1986 unanimous [65]
Kennedy February 3, 1988 unanimous [66]
Souter October 2, 1990 90-9 [67]
Thomas October 15, 1991 52-48 [68]
Ginsburg August 3, 1993 97-3 [69]
Breyer July 29, 1994 87-9 [70]
Bush nominees
Priscilla Owen May 25, 2005 55-43 [71]
Janice Rogers Brown June 8, 2005 56-43 [72]
William H. Pryor June 9, 2005 53-45 [73]

The text of the Constitution requires a two-thirds majority in the Senate for confirming treaties[74], expelling one of its members[75], and concurring in the proposal of Constitutional Amendments [76]. In all other matters, the Constitution gives the Senate the power to make its own rules.[77] 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 Controversies

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. [78][79]

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..."[80] 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.[81] 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." [82]

The agreement to stave off the "nuclear option" reached by 14 moderate Senators supports a strong interpretation of Advice and Consent from the Constitution. [83] (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.

Partisan appointments

Some fear the nuclear option will result in the courts being "packed" by the party which is currently enjoying a majority in the other two branches of the government. As of April 2005, Republican presidents (who have occupied the White House for twenty-four of the past thirty-six years) 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 all 4 of the chief justices since the Truman administration.

In the past, efforts such as the Judiciary Reorganization Bill of 1937 (proposed by Franklin Delano Roosevelt, a Democratic President) have sought to alter the dynamics of the Supreme Court. The Judiciary Reorganization Bill of 1937 took advantage of the fact that the Constitution does not specify how many Supreme Court justices there should be, and so added a new seat for every justice over the age of 60, effectively creating a new majority on the Court.

The nuclear option by itself is a significantly less drastic strategy, only allowing the majority to fill existing vacancies on the Court. However, if the two strategies are combined, a party which controlled the Presidency and had a simple majority in both houses of Congress could quickly gain control of the Court as well.

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. [84] Republicans also state that the general rule in Parliamentary systems "is that majorities govern in a legislative body, unless another rule is expressly provided." [85]

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.[86][87][88]

Republicans were staunch supporters of the filibuster when they were a minority party and frequently employed it to block legislation. 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

Opposed to the Nuclear Option

Myth & Fact Sheets

Support of the Nuclear Option

Myth & Fact Sheets

Other

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