President Trump will put forth a Supreme Court nominee for confirmation by the Senate as soon as next week. The process will likely prove lively. The future of the Supreme Court was the overarching issue I remained focused on throughout the election (See: Supreme Issues). This institution shapes our national character more than any other – and its presence is felt far past any president’s time in office. I am greatly heartened by President Trump’s list of potential nominees. But we need to navigate the nomination process first. And nuclear issues lurk.
Here is an abbreviated exchange between Fox News’ Chris Wallace and Republican Senate Majority Leader Mitch McConnell:
“As Senate rules now stand, because the nuclear option was extended by the Democrats, you can confirm lower court judges with just 51 votes. If the Democrats block a Supreme Court nominee, are you going to extend the nuclear option to Supreme Court nominees?” – Chris Wallace
“Well, let me just say, I’m confident we’ll get a Supreme Court nominee confirmed. I expect an outstanding nominee sometime soon. We think our nominee ought to be treated the same way (no filibuster). If he is not treated that way, then, under the current Senate rule, we would have to get cloture. That is, we’d have to get 60 votes.” – Mitch McConnell
“But would you consider extending the nuclear option for Supreme Court justices, just a simple majority?” – Chris Wallace
“The nominee will be confirmed,” – Mitch McConnell
And so the veiled threat of the Nuclear Option for Supreme Court nominees was raised. And while Democrats have no one to blame but themselves, we should all be concerned over its use.
A short glossary and some potentially helpful links are included below.
In 2013, Democrats found themselves frustrated by Republican filibusters being used to block Obama’s executive and judicial appointments. In response, Democrats, led by Harry Reid, used the Nuclear Option – a process that allows a simple majority vote to rewrite Senate Rules – to alter the way in which Rule 22 is interpreted. Rule 22, also known as Cloture, requires the votes of at least three-fifths of the Senate (60 votes) to bring a filibuster to an end. To invoke cloture on a change in Senate rules, a two-thirds vote (67) is required.
Democratic Senator Reid raised a Point of Order claiming the words “three-fifths” actually meant a simple majority. Reid was overruled by the Presiding Officer, Democratic Senator Patrick Leahy, on advice from the Senate Parliamentarian. Senator Reid then invoked a Congressional Vote on Leahy’s ruling, allowing a simple majority vote of 52-48 to overturn Leahy’s interpretation – thereby creating a new precedent that “three-fifths” now meant a simple majority. All 52 votes in favor of overturning the ruling were Democrats. The new “definition” requiring a simple majority in place of a three-fifths vote related only to filibusters on presidential nominations for cabinet secretary posts and lower federal court judgeships.
For the moment, a three-fifths vote (60) is still required to end a filibuster for a Supreme Court nominee confirmation and for legislation – but the process – and precedent – to get around this threshold has been established.
And Congress wonders why it is universally loathed.
Through the use of a filibuster, 41 Senators can keep a bill – or a Supreme Court nominee – from being voted on – even though the actual vote only requires a simple majority. 51 votes – 50 if the Vice-President is present to break the tie (and a tie is the only instance in which the Vice-President may vote) – is all that’s required for the Senate to actually pass legislation or confirm any type of nominee. The instances in which a Supermajority Vote (defined as two-thirds or 67 votes) would be required is for overcoming presidential vetoes, ratifying treaties, passing Constitutional Amendments, calling a Constitutional Convention, expulsion and impeaching officers or the President.
The filibuster process is separate and distinct from the actual Senate vote on a bill or a nominee’s confirmation. A filibuster is something that occurs before a vote – if it happens at all. A filibuster is a tactic used by the minority party of Congress to debate an issue, thereby delaying, stalling and even preventing a vote on a particular matter – such as a bill or a Supreme Court nominee. As long as an opposing Senator keeps talking on the Senate floor, the matter cannot move forward to a vote. It is sometimes known as “talking a bill to death”.
The filibuster exists for a purpose – to ensure and allow for proper debate before an item reaches a final vote. As George Washington supposedly noted to Thomas Jefferson “We pour our legislation into the Senatorial saucer to cool it”. This famous quote may be nothing more than historical folklore but it captures the essence of our founders’ intentions for the Senate – a slower, more deliberate legislative branch.
The filibuster was not part of the original senate structure – it originated through rule changes in 1806 and was first used in 1837. But a filibuster is integral to the founders’ intent – the Senate was created to protect states rights and slow the legislative process . The Senate was structured to be shielded from populism – allowing for longer-term views on issues – and was intended to be responsible to a different constituency – specifically states (see: Repeal the 17th Amendment).
The filibuster has traditionally encouraged consensus in the Senate by stressing bipartisan cooperation. What can benefit a party at one moment can disadvantage it in another – a situation the Democrats are now facing in Trump’s cabinet appointments. The Democrats’ exercise of the Nuclear Option in 2013 is the reason why Democrats are – and have been – essentially powerless to stop any of President Trump’s cabinet nominations. With the filibuster threat removed, a simple majority is all that’s required to provide confirmation of cabinet nominees – including ones seen as more controversial. If Nuclear Option usage is expanded to include Supreme Court nominees, how long before it is expanded again – to include legislation? And let us not forget that a filibuster is the tool of last resort to allow party members to reign in excesses of their own party.
As a result, I am not in favor of the Nuclear Option and prefer the original intention of majority voting for Senate filibusters (three-fifths vote). Like many, I was concerned over the Democrats’ exercise of the Nuclear Option, worrying that it could quickly become entrenched or institutionalized into Senate processes. The use of the Nuclear Option risks undermining the Senate and its rulemaking procedures, relegating all legislation to a swift and simple majority passage – bypassing the original intent for the Senate as envisioned by our founders, and unfairly encroaching on the rights of the minority political party.
The filibuster is part of the Democratic process and holds a place in our Republic.
But there is another way – should it come to that. As James Wallner and Ed Corrigan of the Heritage Foundation note in their excellent article “A Rules-Based Strategy for Overcoming Minority Obstruction of a Supreme Court Nomination“, strict enforcement of Rule XIX (The Two-Speech Rule) provides another option for filibuster limitation. This little-enforced rule states that “no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate”. A legislative day is not a calendar day and ends only when the Senate adjourns and is not affected by a recess. A vote on the nominee (or legislation) is taken when there are no members left on the floor who want to speak and are allowed to speak. As the authors note “Strictly enforcing Rule XIX while keeping the Senate in the same legislative day limits the amount of time Senators can filibuster a nominee.” The article is somewhat lengthy and goes into great detail – it is worth a read. A perfect solution it is not, but I find it more appealing than further erosion of the filibuster process through ongoing use of the Nuclear Option.
Cloture or Rule 22 (Rule XXII) – the only formal procedure that Senate rules provide for breaking a filibuster. Cloture requires the votes of at least three-fifths of all Senators (normally 60 votes) to invoke cloture. Under cloture, the Senate may limit consideration of a pending matter to 30 additional hours of debate. To invoke cloture on a change in Senate rules, a two-thirds vote (67) is required.
Filibuster – an action such as a prolonged speech that obstructs progress in a legislative assembly while not technically contravening the required procedures. A filibuster is an attempt to block or delay Senate action on a bill or other matter.
Nuclear or Constitutional option – a Parliamentary Procedure that allows the Senate to override a rule or precedent by a simple majority of 51 votes, instead of by a supermajority of 60 votes. The Presiding Officer rules that the validity of a Senate rule or precedent is a constitutional question. The issue is put to the Senate, which decides by majority vote. The procedure thus allows the Senate to decide any issue by majority vote, even though the rules of the Senate specify that ending a Filibuster requires the consent of 60 senators (out of 100) for legislation, 67 for amending a Senate rule.
Parliamentarian – The parliamentarian is the Senate’s advisor on the interpretation of its rules and procedures. Staff from the parliamentarian’s office sit on the Senate dais and advise the presiding officer on the conduct of Senate business.
Parliamentary Procedure – the body of rules, ethics and customs governing meetings and other operations of the Senate.
Point of Order – A claim made by a senator from the floor that a rule of the Senate is being violated. If the chair sustains the point of order, the action in violation of the rule is not permitted.
Presiding Officer – A majority-party senator who presides over the Senate and is charged with maintaining order and decorum, recognizing members to speak, and interpreting the Senate’s rules, practices and precedents.
Rule XIX – governs the subject of debate on the Senate floor.
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