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What is the Filibuster-Breaking Nuclear Option?

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What is the so-called “nuclear option” that Senator Bill Frist may deploy soon in a precedent-setting attempt to break a potential filibuster? It sounds ominous, but what is it all about, really?

President Bush has the opportunity to nominate and fill numerous federal judicial positions this year. Eventually he will have the opportunity to nominate one or more Supreme Court jusices as well. However,this issue isn’t about the potential Supreme Court nominations yet, but ultimately it will be.

The Democrats in the Senate plan to use the filibuster to prevent the Senate from voting on the federal judicial nominees that the Democrats see as objectionable. A simple majority of 51 Senators is needed to confirm the nominees. However, once a filibuster has begun, 60 votes are then required to invoke cloture, ending the filibuster, and forcing a vote. There are 55 Republicans in the current Senate, enough votes to confirm President Bush’s federal judicial nominees, but not enough to break a nomination-ending filibuster without bipartisan cooperation.

The Republicans contend that requiring 60 votes to effectively confirm a nomination is unconstitutional. The Constitution is imprecise on this point. The Constitution only asks the Congress to “advise and consent” regarding judicial nominees, which implies that only a simple majority vote is needed. The Democrats contend that the filibuster is not unconstitutional and has been used often in the past by the minority party, both Republican and Democratic, and that rules governing its usage should be left intact.

Republican Senator Bill Frist has proposed the “nuclear option,” which would set a precedent and effectively change the rules. Currently, Senate Rule XXII stipulates that invoking cloture requires a supporting vote of 60%, and it further stipulates that to change the rule requires a supporting vote of 67%.

Here’s one possible scenario about how Senator Frist might trigger the “nuclear option.”

1. A controversial judicial nomination goes to the Senate floor for consideration.
2. Senate Democrats begin a filibuster to prevent a confirmation vote.
3. Senator Frist raises a Point of Order. He contends that further debate would be dilatory and that a vote must be taken within a specific period of time.
4. Vice President Cheney, the presiding officer, sustains the Point of Order.
5. A Democratic Senator appeals the ruling.
6. A Republican Senator moves to table the appeal, which would effectively eliminate the appeal.
7. The Senate votes on the motion to table the appeal. This is a procedural issue and cannot be filibustered. Only 51 votes are needed to pass the motion to table the appeal.
8. If only 50 Senators vote to table the appeal, Vice President Cheney can cast the tie-breaking vote. 51 votes would sustain the ruling, thus requiring the filibuster to end within a specified time frame.

This is considered a “nuclear option” because it circumvents Senate Rule XXII which governs cloture. It also would cause further division among Republicans and Democrats, making bipartisan cooperation in the future more difficult. The option would also be a tactic that would be used against the Republicans in the future when they are the minority party and a Democratic President nominates federal judges.

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