- Last week Senate Republicans moved to use the “nuclear” option to change the nomination process for certain court nominees.
- The “nuclear” option is a parliamentary tactic allowing the party in the majority to change a Senate precedent with a simple majority vote.
- Democrats were critical of the change, while Republicans have attempted to frame it as a healthy accommodation of the democratic process.
How it happened
Last week GOP lawmakers in the Senate moved to use the “nuclear” option to change the nomination process for certain court nominees. Ballotpedia, a nonprofit dedicated to informing people about politics from a position of neutrality, offered a helpful rundown of what happened and what the new rules mean for Senate confirmations going forward.
In brief, the Senate decided on a 51-48 vote to scale back its post-cloture debates for federal district court nominees from the longtime precedent of 30 hours to two hours (this change does not apply to circuit court judges and Supreme Court justices). The same change was made for executive branch nominees below the Cabinet level.
Federal district courts, as the first level of the federal court system, are where most federal criminal and civil cases originate. They also represent the most expansive level of the system with 677 federal judge positions. Of President Donald Trump’s 75 judicial nominees that have yet to be confirmed, 56 are nominees to district courts.
Invoking cloture is the process where senators decide to conclude debate and bring up nominees or legislation for a final vote. Typically senators do this to end filibusters. Current Senate rules require 51 votes to invoke cloture on a presidential nominee and 60 votes to invoke cloture on legislation.
The so-called “nuclear” option is a parliamentary tactic allowing the party in the majority to change a Senate precedent with a simple majority vote, even though normally it requires a two-thirds vote to change the Senate’s standing rules. When Republicans tried to pass the change as a standing resolution, they were unable to get the requisite 60 votes, hence their resort to the nuclear option.
In an extensive breakdown of what happened, Ballotpedia summarized the technicalities of how Senate Majority Leader Mitch McConnell (R-Ky.) managed to pull off this change to the Senate rules:
“To deploy the nuclear option, (McConnell) raised a point of order during the consideration of Roy Altman to serve on the U.S. District Court for the Southern District of Florida. His point of order stated that debate should be limited to two hours after cloture is invoked on a judicial nominee. After the presiding officer of the Senate ruled against McConnell’s point of order, 51 Senate Republicans — all except Susan Collins (R-Me.) and Mike Lee (R-Ut.) — voted to overrule the chair’s decision.”
On only two other occasions has the Senate used the nuclear option to change its precedent for presidential nominations. The first was in 2013, when Senate Majority Leader Harry Reid (D-Nev.) lowered the threshold for invoking cloture from 60 votes to 51 votes for all presidential nominees except Supreme Court justices. During the Senate’s consideration of Neil Gorsuch to the U.S. Supreme Court in 2017, McConnell took this a step higher by reducing the cloture threshold for Supreme Court nominees from 60 votes to 51 votes.
What politicians are saying
Unsurprisingly, Democrats were critical of the change.
“Two hours for a lifetime appointment is unacceptable,” said Senate Minority Leader Chuck Schumer (D-N.Y.). “Two hours for a lifetime appointment with huge influence on people’s lives is unacceptable. It’s ridiculous.”
Sen. Joe Manchin (D-W.V) characterized both this rule change as well as the previous ones in 2013 and 2017 not as acts of efficiency, as their proponents claimed, but as power grabs “meant to take power from each and every senator.”
Republicans, meanwhile, have attempted to frame the procedural change as a healthy accommodation of the democratic process.
In an April 1 op-ed, Senate Majority Leader Mitch McConnell (R-Ky.) criticized the “all-encompassing, systematic nature” of Democrats’ obstruction delaying Trump’s nominees as a break with the Senate’s “important tradition of minority rights.”
“This break with tradition is hurting the Senate, hamstringing our duly elected president, and denying citizens the government they elected,” McConnell wrote.
“What we’re debating here are rules that were never part of the Constitution,” said Sen. Steve Daines (R-Mt.). “The Senate gets to define the rules, and the Senate can change its rules. It is a good healthy debate, and I don’t think you’re going to see a legislative filibuster change in this Congress.”
Image Credit: “Mitch McConnell” by Gage Skidmore is licensed under CC BY-SA 2.0.
Andrew Collins cut his teeth in politics as a congressional campaign staffer during the 2012 election. Since then he has worked in Washington, D.C. as the digital media manager and as a staff writer at the Franklin Center for Government & Public Integrity, and is a recent graduate of the Trinity Fellows Academy (class of ’17). His work has appeared in Politico, US News & World Report, The Chicago Tribune, The Daily Caller, and The Hill. He lives in Seattle, WA.