What the New Nuclear Option Means for the Senate


What the New Nuclear Option Means for the Senate

Nov 21, 2013 1 min read

Former Legal Fellow and Appellate Advocacy Program Manager

Elizabeth Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues.

This afternoon, the Senate approved a rules change that will effectively eliminate the filibuster for executive branch and judicial nominations. Under the old rules, Senators could debate whether to confirm a nomination until 60 members voted to invoke cloture and end the debate. Majority Leader Harry Reid (D-NV) succeeded today in lowering that threshold to a simple majority of 51 votes when the Senate voted 52-48 to make the change.

This new rule will enable Reid to force through three nominations to the D.C. Circuit Court that Republicans have opposed based on the fact that the D.C. Circuit is underworked and doesn’t need any more judges.

Though the rule purportedly applies only to executive branch and judicial nominations—excluding Supreme Court nominations (for now, anyway)—it would seem with 51 votes, Reid can do just about anything. This change will certainly have a negative effect on whatever comity is left in the Senate, which used to be referred to as “the world’s greatest deliberative body.”

With 55 Senators in the Democratic caucus, Reid will no longer need to work with Republicans in order to confirm judges or executive branch nominees.

But Senate Democrats (particularly the 31 who have never experienced life in the Senate minority) may regret the decision to effectively eliminate the filibuster for nominations if in the future they become the minority party and no longer have a President who is a Democrat.

As Senate Republican leader Mitch McConnell (KY) pointed out, “Some of us have been around long enough to know the shoe is sometimes on the other foot.” Some Republicans may be content to bide their time until they have their chance to put nominees on the court. As Senator Chuck Grassley (R–IA) put it, “Go ahead. There are a lot more [Antonin] Scalias and [Clarence] Thomases out there we’d love to put on the bench.”

This piece originally appeared in The Daily Signal