Nuclear option - AbsoluteAstronomy.com

This article is about the U.S. legislative tactic. See also nuclear warfare
Nuclear warfare
Nuclear warfare, or atomic warfare, is a military conflict or political strategy in which nuclear weaponry is detonated on an opponent. Compared to conventional warfare, nuclear warfare can be vastly more destructive in range and extent of damage...

.

In U.S. politics, the "nuclear option" (or "constitutional option") allows the United States Senate

United States Senate

The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

to reinterpret a procedural rule by invoking the argument that the Constitution requires that the will of the majority be effective on specific Senate duties and procedures. This option allows a simple majority to override the rules of the Senate and end a filibuster

Filibuster

A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...

or other delaying tactic. In contrast, the cloture

Cloture

In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...

rule requires a supermajority of 60 votes (out of 100) to end a filibuster. The new interpretation becomes effective, both for the immediate circumstance and as a precedent, if it is upheld by a majority vote.

Although it is not provided for in the formal rules of the Senate, the nuclear option is the subject of a 1957 parliamentary opinion by Vice President Richard Nixon and was endorsed by the Senate in a series of votes in 1975, some of which were reconsidered shortly thereafter. Senator Trent Lott

Trent Lott

Chester Trent Lott, Sr. , is a former United States Senator from Mississippi and has served in numerous leadership positions in the House of Representatives and the Senate....

(R-Miss.) first called the option "nuclear" in March 2003. Proponents since have referred to it as the constitutional option.

The maneuver was brought to prominence in 2005 when then-Majority Leader

Party leaders of the United States Senate

The Senate Majority and Minority Leaders are two United States Senators who are elected by the party conferences that hold the majority and the minority respectively. These leaders serve as the chief Senate spokespeople for their parties and manage and schedule the legislative and executive...

Bill Frist

William Harrison "Bill" Frist, Sr. is an American physician, businessman, and politician. He began his career as an heir and major stockholder to the for-profit hospital chain of Hospital Corporation of America. Frist later served two terms as a Republican United States Senator representing...

(Republican of Tennessee

Tennessee

Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...

) threatened its use to end Democratic-led filibusters of judicial nominees submitted by President

President of the United States

The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....

George W. Bush

George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....

. In response to this threat, Democrats threatened to shut down the Senate and prevent consideration of all routine and legislative Senate business. The ultimate confrontation was prevented by the Gang of 14

Gang of 14

The Gang of 14 was a term coined to describe the bipartisan group of Senators in the 109th United States Congress who successfully negotiated a compromise in the spring of 2005 to avoid the deployment of the so-called nuclear option over an organized use of the filibuster by Senate...

, a group of seven Democratic and seven Republican Senators, all of whom agreed to oppose the nuclear option and oppose filibusters of judicial nominees, except in extraordinary circumstances.

The nuclear option is not to be confused with reconciliation

Reconciliation (United States Congress)

Reconciliation is a legislative process of the United States Senate intended to allow consideration of a budget bill with debate limited to twenty hours under Senate Rules...

, which allows issues related to the annual budget to be decided by a majority vote without the possibility of filibuster.

Changes to Senate rules

The Senate does not restrict the total time allowed for debate; instead, a motion for cloture

Cloture

must be passed to end debate. A three-fifths majority of all senators duly sworn (60 senators, assuming there is no more than one vacancy) is required to approve the cloture motion and proceed to a vote on the main issue. Thus, although a bill might have majority support, a minority of 41 senators can prevent a final vote, effectively defeating the bill. In practice, if it is clear that the motion for cloture will not carry, the bill may simply be tabled so that the Senate can conduct other business. From time to time, however, the margin of votes for cloture may be very close, and the minority may wish to stall the cloture vote for as long as possible. Because debate time is unlimited, senators may simply speak endlessly on the Senate floor to prevent a vote from taking place; this tactic is known as a filibuster

Filibuster

A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...

. A formal change to the Senate's rules is even more difficult to make: Senate rule 22 says that such a change requires a two-thirds majority of those present and voting to end debate (67 votes if all senators vote).

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 thenceforth.

The nuclear option is a potential response to a filibuster or other dilatory tactic. A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this. The presiding officer of the Senate, usually the vice president of the United States

Vice President of the United States

The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...

or the president pro tempore

President pro tempore of the United States Senate

The President pro tempore is the second-highest-ranking official of the United States Senate. The United States Constitution states that the Vice President of the United States is the President of the Senate and the highest-ranking official of the Senate despite not being a member of the body...

, makes a parliamentary ruling upholding the senator's point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent. A supporter of the filibuster may challenge the ruling by asking, "Is the decision of the Chair to stand as the judgment of the Senate?" This is referred to as "appealing from the Chair." An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue. If the appeal is successfully tabled, then the presiding officer's ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration. The effect of the nuclear option is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the nuclear option effects a change in the operational rules of the Senate, so that the filibuster or dilatory tactic would thereafter be barred by the new precedent.

Historical backdrop

The first set of Senate rules included a procedure to limit debate called "moving the previous question." This rule was dropped in 1806 in the misunderstanding that it was redundant. Starting in 1837, senators began taking advantage of this gap in the rules by giving lengthy speeches so as to prevent specific measures they opposed from being voted on, a procedure called filibustering. In 1890, Senator Nelson Aldrich (R-RI) threatened to break a Democratic filibuster of a Federal Election Bill by invoking a procedure called "appeal from the chair." At this time, there was no cloture rule or other regular method to force an immediate vote. Aldrich's plan was to demand an immediate vote by making a point of order. If, as expected, the presiding officer overrules the point, Aldrich would then appeal the ruling and the appeal would be decided by a majority vote of the Senate. (This plan would not work today because appeals from the chair are debatable under modern rules.) If a majority voted to limit debate, a precedent would have been established to allow debate to be limited by majority vote. Aldrich's plan was procedurally similar to the modern option, but it stayed within the formal rules of the Senate and did not invoke the Constitution. In the end, the Democrats were able to muster a majority to table the bill, so neither Aldrich's proposed point of order nor his proposed appeal was ever actually moved.

In 1892, the U.S. Supreme Court ruled in United States v. Ballin
United States v. Ballin
United States v. Ballin, is a decision issued on February 29, 1892 by the United States Supreme Court, discussing the constitutional definition of "a quorum to do business" in Congress...

that both houses of Congress are parliamentary bodies, implying that they may make procedural rules by majority vote. In 1917, Senator Thomas J. Walsh

Thomas J. Walsh

Thomas James Walsh was a lawyer and Democratic Party politician from Helena, Montana, in the United States.-Background:...

contended the majority of the Senate could revise a procedural rule at any time, despite the requirement of the Senate rules that a two-thirds majority is necessary to approve a rule change. "When the Constitution says, 'Each House may determine its rules of proceedings,' it means that each House may, by a majority vote, a quorum present, determine its rules," Walsh told the Senate. Opponents countered that Walsh's constitutional option would lead to procedural chaos, but his argument was a key factor in the adoption of the first cloture rule later that year. In 1957, Vice President Richard Nixon

Richard Nixon

Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...

issued an advisory opinion stating that no Senate may constitutionally enact a rule that deprives a future Senate of the right to approve its own rules by the vote of a simple majority. Nixon's advisory opinion, along with similar opinions by Hubert Humphrey and Nelson Rockefeller, has been cited as precedent to support the view that the Senate may amend its rules at the beginning of the session with a simple majority vote.

The option was officially moved by Senator Clinton P. Anderson (D-NM) (1963), Senator George McGovern

George McGovern

George Stanley McGovern is an historian, author, and former U.S. Representative, U.S. Senator, and the Democratic Party nominee in the 1972 presidential election....

(D-SD) (1967), and Senator Frank Church

Frank Church

Frank Forrester Church III was an American lawyer and politician. A member of the Democratic Party, he served as a United States Senator from Idaho from 1957 to 1981....

(D-ID) (1969), but was each time defeated or tabled by the Senate. According to one account, the option was arguably endorsed by the Senate three times in 1975 during a debate concerning the cloture requirement. A compromise was reached to reduce the cloture requirement from two-thirds of those voting (67 votes if 100 Senators were present) to three-fifths of the current Senate (60 votes if there were no current vacancies) and also to approve a point of order revoking the earlier three votes in which the Constitutional option had been invoked. (This was an effort to reverse the precedent that had been set for cloture by majority vote).

Senator Robert Byrd

Robert Byrd

Robert Carlyle Byrd was a United States Senator from West Virginia. A member of the Democratic Party, Byrd served as a U.S. Representative from 1953 until 1959 and as a U.S. Senator from 1959 to 2010...

(D-WV) was able to effect rule changes by majority vote four times when he was majority leader despite the formal requirement for a two-thirds vote: to ban post-cloture filibustering (1977), to adopt a rule to limit amendments to an appropriations bill (1979), to allow a senator to make a non-debatable motion to bring a nomination to the floor (1980), and to ban filibustering during a roll call vote (1987). These actions have been cited as precedent for the nuclear option.

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. 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 cloture at that time.

In 1996, President Bill Clinton

Bill Clinton

William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...

nominated Judge Richard Paez

Richard Paez

Richard Anthony Paez is a federal judge on the United States Court of Appeals for the Ninth Circuit.- Early life and education :Paez hails from Utah. He received his Bachelor of Arts degree from Brigham Young University in 1969...

to the United States Court of Appeals for the Ninth Circuit

United States Court of Appeals for the Ninth Circuit

The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...

. Republicans held up Paez's nomination for more than four years, culminating in a failed March 8, 2000 filibuster. Only 14 Republicans approved it. Senate Majority Leader Bill Frist (R-TN) was among those who voted to filibuster Paez. Paez was ultimately confirmed with a simple majority.

In addition to filibustering nominations, the Republican-controlled Senate refused to hold hearings for some 60 Clinton appointees, effectively blocking their nomination from coming to a vote on the Senate floor.

Bush appointments: 2001–2006

When George W. Bush took office in 2001 there remained dozens of federal court vacancies. Democratic Senators contended that these vacancies remained despite Clinton nominations to fill them because of obstruction by Republican Senators. Republicans held a majority in the Senate during the last six years of the Clinton administration and controlled who would be voted on. Democratic Senators asserted that, for the most part, Republicans did not raise objections to those judicial candidates, but simply refused to hold hearings on the nominations.

Lines are drawn

In the 2005 Senate, Republicans held 55 seats and the Democrats held 45 including Jim Jeffords

Jim Jeffords

James Merrill "Jim" Jeffords is a former U.S. Senator from Vermont. He served as a Republican until 2001, when he left the party to become an independent. He retired from the Senate in 2006.-Background:...

, an independent

Independent (politician)

In politics, an independent or non-party politician is an individual not affiliated to any political party. Independents may hold a centrist viewpoint between those of major political parties, a viewpoint more extreme than any major party, or they may have a viewpoint based on issues that they do...

from Vermont who caucus

Caucus

A caucus is a meeting of supporters or members of a political party or movement, especially in the United States and Canada. As the use of the term has been expanded the exact definition has come to vary among political cultures.-Origin of the term:...

ed with the Democrats. Confirmation requires a plurality of votes, and the Republicans could easily confirm their nominees if brought to the floor. Earlier in 2005, Democrats had blocked the nomination of 10 of George W. Bush

George W. Bush

's nominees, saying they were too conservative and that Republicans had blocked many of their nominees back in the 1990s. Frist then threatened to use the nuclear option in response. 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.

In March 2001, President Bush announced that the administration would no longer seek the American Bar Association

American Bar Association

The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...

's (ABA) evaluations of federal judicial candidates, responding to Republican complaints of liberal bias and ending a tradition started by Eisenhower in 1953. Despite this, the ABA's committee continues to provide the public service. Democratic senators all favor the ABA input.

During his first term, President

President of the United States

Bush

George W. 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

Party leaders of the United States Senate

Harry Reid

Harry Mason Reid is the senior United States Senator from Nevada, serving since 1987. A member of the Democratic Party, he has been the Senate Majority Leader since January 2007, having previously served as Minority Leader and Minority and Majority Whip.Previously, Reid was a member of the U.S...

(D-Nev.) vowed to fight their confirmation. Senate Majority Leader Frist threatened to use the nuclear option to get them confirmed.

Senator

United States Senate

Ted Stevens

Theodore Fulton "Ted" Stevens, Sr. was a United States Senator from Alaska, serving from December 24, 1968, until January 3, 2009, and thus the longest-serving Republican senator in history...

(R-Alaska) first suggested using a ruling of the chair to defeat a filibuster of judicial nominees in February 2003. The code word

Code word

In communication, a code word is an element of a standardized code or protocol. Each code word is assembled in accordance with the specific rules of the code and assigned a unique meaning...

for the plan was "Hulk". Weeks later Sen. Trent Lott

Trent Lott

Chester Trent Lott, Sr. , is a former United States Senator from Mississippi and has served in numerous leadership positions in the House of Representatives and the Senate....

(R-Miss.) coined the term nuclear option because the maneuver 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. Frumin is an ostensibly neutral staff member and appointed keeper of the Senate's rules, and is opposed to the nuclear option. It's been reported that a Congressional Research Service

Congressional Research Service

The Congressional Research Service , known as "Congress's think tank", is the public policy research arm of the United States Congress. As a legislative branch agency within the Library of Congress, CRS works exclusively and directly for Members of Congress, their Committees and staff on a...

report "leaves little doubt" that the nuclear option would not be based on previous precedents of the Senate.

"Extremist" judges

In April 2005, Senate Democrats were blocking the confirmation of seven of President Bush's nominees, calling them too extreme for a lifetime appointment. The most controversial nominees were Janice Rogers Brown

Janice Rogers Brown

Janice Rogers Brown is a federal judge on the United States Court of Appeals for the District of Columbia Circuit. She previously was an Associate Justice of the California Supreme Court, holding that post from May 2, 1996 until her appointment to the D.C. Circuit.President George W. Bush...

and Priscilla Owen

Priscilla Owen

Priscilla Richman Owen is a federal judge on the United States Court of Appeals for the Fifth Circuit. She was previously a Justice on the Texas Supreme Court.-Early life:...

(both later confirmed). Owen had been called "dogmatic" by the American Bar Association, "extreme" by the New York Times, and a "judicial activist

Judicial activism

Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...

" by CivilRights.org.

Janice Rogers Brown
Janice Rogers Brown
Janice Rogers Brown is a federal judge on the United States Court of Appeals for the District of Columbia Circuit. She previously was an Associate Justice of the California Supreme Court, holding that post from May 2, 1996 until her appointment to the D.C. Circuit.President George W. Bush...

.

Opposition: The Los Angeles Times
Los Angeles Times
The Los Angeles Times is a daily newspaper published in Los Angeles, California, since 1881. It was the second-largest metropolitan newspaper in circulation in the United States in 2008 and the fourth most widely distributed newspaper in the country....

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

American Bar Association

. Some committee members found her unfit for the appeals court. The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...

editorialized, "Brown's record as a judge is ... cause for alarm. She regularly stakes out extreme positions, often dissenting alone." People for the American Way

People For the American Way

People For the American Way is a progressive advocacy group in the United States. Under U.S. tax code, People For the American Way is organized as a tax-exempt 501 non-profit organization.-Purpose:...

President Ralph G. Neas described Janice Rogers Brown as the "far right's dream judge." Senate Minority leader Harry Reid said "She is a woman who wants to take us back to the Civil War days."

Support: Supporters counter that Brown has opposed racial profiling and won election and then re-election (with 75% of the vote) to the Supreme Court of California. Supporters also argue that Justice Brown's record of judicial decisions cannot support a characterization of her views as "extremist," and that her record evinces a sensitivity to civil rights. In 2000, she followed the Supreme Court's lead in Adarand Constructors, Inc. v. Peña
Adarand Constructors, Inc. v. Peña
Adarand Constructors, Inc. v. Peña, , is a United States Supreme Court case which held that racial classifications, imposed by the federal government, must be analyzed under a standard of "strict scrutiny," the most stringent level of review which requires that racial classifications be narrowly...

, striking down a San Jose

San Jose, California

San Jose is the third-largest city in California, the tenth-largest in the U.S., and the county seat of Santa Clara County which is located at the southern end of San Francisco Bay...

city ordinance requiring government contractors to solicit bids from companies owned by women and minorities, demonstrating her opposition to affirmative action

Affirmative action

Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...

Justice Priscilla Owen
Priscilla Owen
Priscilla Richman Owen is a federal judge on the United States Court of Appeals for the Fifth Circuit. She was previously a Justice on the Texas Supreme Court.-Early life:...

.

Opposition: The Houston Chronicle
Houston Chronicle
The Houston Chronicle is the largest daily newspaper in Texas, USA, headquartered in the Houston Chronicle Building in Downtown Houston. , it is the ninth-largest newspaper by circulation in the United States...

characterized Owen as "one of the most conservative" justices on "Texas' Republican-dominated top court." 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. 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." The Leadership Conference on Civil Rights

Leadership Conference on Civil Rights

The Leadership Conference on Civil and Human Rights , formerly called The Leadership Conference on Civil Rights, is an umbrella group of American civil rights interest groups.-Organizational history:...

(representing 180 national organizations) calls Owen a "judicial activist with a disturbing willingness to effectively rewrite or disregard the law." 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

Texas Supreme Court

The Supreme Court of Texas is the court of last resort for non-criminal matters in the state of Texas. A different court, the Texas Court of Criminal Appeals, is the court of last resort for criminal matters.The Court is composed of a Chief Justice and eight Associate Justices...

, disputes the above charge from the Leadership Conference on Civil Rights

Leadership Conference on Civil Rights

. Justice Owen received a unanimous rating of "well qualified" from the American Bar Association. 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, Majority Leader Bill Frist

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.

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

Up or down vote

An up or down vote refers to a direct vote in the U.S. House of Representatives or the U.S. Senate on an amendment or bill; it is sometimes referred to as a "clean vote". Members vote yea or nay on the matter rather than voting on a related procedural maneuver...

(which would have included all of the candidates except Janice Rogers Brown). 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. 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."

Political motivations

Many Democrats viewed 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. Quoting from Slate.com:
Pat Robertson

Pat Robertson

Marion Gordon "Pat" Robertson is a media mogul, television evangelist, ex-Baptist minister and businessman who is politically aligned with the Christian Right in the United States....

, 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

Nazi Germany

Nazi Germany , also known as the Third Reich , but officially called German Reich from 1933 to 1943 and Greater German Reich from 26 June 1943 onward, is the name commonly used to refer to the state of Germany from 1933 to 1945, when it was a totalitarian dictatorship ruled by...

or Civil War. 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. In January 2005, Dr. James C. Dobson, head of Focus on the Family

Focus on the Family

Focus on the Family is an American evangelical Christian tax-exempt non-profit organization founded in 1977 by psychologist James Dobson, and is based in Colorado Springs, Colorado. Focus on the Family is one of a number of evangelical parachurch organizations that rose to prominence in the 1980s...

, threatened six Democratic senators if they block conservative nominees. On May 24, 2005, after the compromise negotiated between 14 Senators was announced (the Gang of 14

Gang of 14

), Dobson said the agreement "represents a complete bailout and a betrayal by a cabal of Republicans and a great victory for united Democrats."
One of the arguments made by Senate Republicans opposed to the nuclear option was that Democrats might gain a Senate majority, or the Presidency, again. Thus the GOP might need the filibuster to block the appointment of what Republicans might consider to be an unacceptable nominee by the Democratic president.
Protests against the nuclear option took place on numerous college campuses; on the Princeton University

Princeton University

Princeton University is a private research university located in Princeton, New Jersey, United States. The school is one of the eight universities of the Ivy League, and is one of the nine Colonial Colleges founded before the American Revolution....

campus, outside the Frist Campus Center (named for the senator'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

Harry Reid

(D-Nev) pointed out that only 10 of 214 nominations by President Bush

George W. Bush

have been turned down. Former President Bill Clinton

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 had a better record of having his judicial nominees approved than any President in the previous 25 years. One of Democrats' biggest complaints had been that more than 60 of President Clinton's nominees were bottled up in committee, leaving positions available for Bush to fill. (Republicans were the majority in the Senate for six of Clinton's eight years as President—1995–2001.) On April 27, 2005, Former Vice President Al Gore

Al Gore

Albert Arnold "Al" Gore, Jr. served as the 45th Vice President of the United States , under President Bill Clinton. He was the Democratic Party's nominee for President in the 2000 U.S. presidential election....

said, "Their grand design is an all-powerful executive using a weakened legislature

Legislature

A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

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 B. Griffith

Thomas B. Griffith

Thomas Beall Griffith is a federal judge on the United States Court of Appeals for the District of Columbia Circuit. Before his appointment to the bench he was Senate Legal Counsel, the chief legal officer of the United States Senate...

. Democrats cited this offer as a goodwill gesture to show that they are willing to 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 noted that the Democrats' judicial filibusters had already killed three of President Bush's Court of Appeals nominations (Miguel Estrada

Miguel Estrada

Miguel Angel Estrada Castañeda is an attorney who became embroiled in controversy following his 2001 nomination by President George W. Bush to the United States Court of Appeals for the District of Columbia Circuit...

, Charles Pickering

Charles W. Pickering

Charles Willis Pickering, Sr. is a retired federal judge who served on the United States Court of Appeals for the Fifth Circuit.- Background :...

, and Carolyn Kuhl

Carolyn Kuhl

Carolyn Barbara Kuhl is a judge on the Superior Court of California for the County of Los Angeles and a former nominee to the United States Court of Appeals for the Ninth Circuit. She was born in St. Louis, Missouri.-Background:...

), as those judges withdrew their nominations rather than continue to fight the filibuster.

Republican counter-proposal

Senate Majority Leader Bill Frist

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."

Critical mass

On Friday, May 20, a cloture vote for the nomination of Janice Rogers Brown was rescheduled for Tuesday, May 24. 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

Priscilla Owen

Priscilla Richman Owen is a federal judge on the United States Court of Appeals for the Fifth Circuit. She was previously a Justice on the Texas Supreme Court.-Early life:...

. This threatened to trigger the nuclear option.

Gang of 14

Senator John McCain

John McCain

John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....

(R-AZ) and Senator Ben Nelson

Ben Nelson

Earl Benjamin "Ben" Nelson is the senior U.S. Senator from Nebraska. He is a member of the Democratic Party and was elected to the U.S. Senate in 2000....

(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

Janice Rogers Brown

, William Pryor

William H. Pryor, Jr.

William Holcombe "Bill" Pryor, Jr. is a federal judge on the United States Court of Appeals for the Eleventh Circuit. Previously, he was the Attorney General of the State of Alabama from 1997 to 2004.-Background:...

, and Priscilla Owen

Priscilla Owen

Priscilla Richman Owen is a federal judge on the United States Court of Appeals for the Fifth Circuit. She was previously a Justice on the Texas Supreme Court.-Early life:...

) while preserving the judicial filibuster on William Myers and Henry Saad

Henry Saad

Henry William Saad is a judge on the Michigan Court of Appeals and a former nominee to the United States Court of Appeals for the Sixth Circuit. He was born in Detroit, Michigan.-Background:...

. 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." The block of senators who agreed to the compromise included Republicans John McCain

John McCain

John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....

, Lindsey Graham

Lindsey Graham

Lindsey Olin Graham is the senior U.S. Senator from South Carolina and a member of the Republican Party. Previously he served as the U.S. Representative for .-Early life, education and career:...

of South Carolina

South Carolina

South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...

, John Warner

John Warner

John William Warner, KBE is an American Republican politician who served as Secretary of the Navy from 1972 to 1974 and as a five-term United States Senator from Virginia from January 2, 1979, to January 3, 2009...

of Virginia

Virginia

The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...

, Olympia Snowe

Olympia Snowe

Olympia Jean Snowe , née Bouchles, is the senior United States Senator from Maine and a member of the Republican Party. Snowe has become widely known for her ability to influence the outcome of close votes, including whether to end filibusters. She and her fellow Senator from Maine, Susan Collins,...

of Maine

Maine

Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost...

, Susan Collins

Susan Collins

Susan Margaret Collins is the junior United States Senator from Maine and a member of the Republican Party. First elected to the Senate in 1996, she is the ranking member of the Senate Committee on Homeland Security and Governmental Affairs...

of Maine, Mike DeWine

Mike DeWine

Richard Michael "Mike" DeWine is the Attorney General for the state of Ohio. He has held numerous offices on the state and federal level, including Ohio State Senator, four terms as a U.S. Congressman, Ohio Lt. Governor, and was a two-term U.S. Senator, serving from 1995 to 2007.- Biography :Born...

of Ohio

Ohio

Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...

, and Lincoln Chafee

Lincoln Chafee

Lincoln Davenport Chafee is an American politician who has been the 74th Governor of Rhode Island since January 2011. Prior to his election as governor, Chafee served in the United States Senate as a Republican from 1999 until losing his Senate re-election bid in 2006 to Democrat Sheldon...

of Rhode Island

Rhode Island

The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...

; and Democrats Nelson, Joe Lieberman

Joe Lieberman

Joseph Isadore "Joe" Lieberman is the senior United States Senator from Connecticut. A former member of the Democratic Party, he was the party's nominee for Vice President in the 2000 election. Currently an independent, he remains closely affiliated with the party.Born in Stamford, Connecticut,...

of Connecticut

Connecticut

Connecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...

, Robert Byrd

Robert Byrd

of West Virginia

West Virginia

West Virginia is a state in the Appalachian and Southeastern regions of the United States, bordered by Virginia to the southeast, Kentucky to the southwest, Ohio to the northwest, Pennsylvania to the northeast and Maryland to the east...

, Mary Landrieu

Mary Landrieu

Mary Loretta Landrieu is the senior United States Senator from the State of Louisiana and a member of the Democratic Party.Born in Arlington, Virginia, Landrieu was raised in New Orleans, Louisiana...

of Louisiana

Louisiana

Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...

, Daniel Inouye

Daniel Inouye

Daniel Ken "Dan" Inouye is the senior United States Senator from Hawaii, a member of the Democratic Party, and the President pro tempore of the United States Senate making him the highest-ranking Asian American politician in American history. Inouye is the chairman of the United States Senate...

of Hawaii

Hawaii

Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...

, Mark Pryor

Mark Pryor

Mark Lunsford Pryor is the senior United States Senator from Arkansas, serving since 2003. He is a member of the Democratic Party and former Attorney General of Arkansas....

of Arkansas

Arkansas

Arkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...

, and Ken Salazar

Ken Salazar

Kenneth Lee "Ken" Salazar is the current United States Secretary of the Interior, in the administration of President Barack Obama. A member of the Democratic Party, he previously served as a United States Senator from Colorado from 2005 to 2009. He and Mel Martinez were the first Hispanic U.S...

of Colorado

Colorado

Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...

. This group was quickly dubbed "the Gang of 14

Gang of 14

" in various blogs and news outlets. McCain, Chafee, Collins, and Snowe were already on record as opposing the nuclear option, leaving the Democrats two votes short of defeating an attempt to trigger it (they would have needed 51 votes to override Vice President Dick Cheney

Dick Cheney

Richard Bruce "Dick" Cheney served as the 46th Vice President of the United States , under George W. Bush....

's tie-breaking vote).

The bipartisan group was large enough to deny Frist the 50 votes he needed to trigger the nuclear option, and also large enough to reach cloture on a Democratic filibuster. It states, in part:
Democrats in the Gang agreed not to filibuster the judges listed in the agreement (save in "extraordinary" circumstances) and Republicans in the Gang agreed not to vote for the nuclear option. The definition of what constituted an "extraordinary" circumstance was left up to the individual senator. For example, Graham and DeWine let it be known that they did not consider nominations to the Supreme Court to fit the definition.

Frist reluctantly approved the compromise. Several of the blocked nominees were brought to the floor, voted upon and approved as specified in the agreement, and others were dropped and did not come up for a vote, as implied by the agreement.

As a result of this agreement, Owen was confirmed 55-43, Brown was confirmed 56-43, and Pryor was confirmed 53-45.

Differing standards for consent

The arguments for or against the nuclear option boil down to whether a simple majority (51/49) or (51/50 with the Vice President breaking the tie) of the Senate should be able to confirm a judicial nominee or pass a bill, or whether a three-fifths vote (60/100) should be required, as required for passage of a large amount of Senate business, and whether the Constitution mandates either standard.

Simple majority

The U.S. Constitution does not expressly address how many votes are required for passage of a bill or confirmation of a nominee. Many of those supporting a simple majority standard argued that this silence implied that a simple majority is sufficient; they contrasted this with Article II

Article Two of the United States Constitution

Article Two of the United States Constitution creates the executive branch of the government, consisting of the President and other executive officers.-Clause 1: Executive power:...

's language for Senate confirmation of treaties, which appears within the same clause and explicitly requires a two-thirds majority.

From this, supporters of the nuclear option argued that it would bring current rules in line with the framers' original intent

Original intent

Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently—and usually spuriously—used as a synonym for originalism generally; while original intent is indeed one theory in the originalist family, it has some extremely salient differences which has...

– hence supporters' preferred nomenclature

Nomenclature

Nomenclature is a term that applies to either a list of names or terms, or to the system of principles, procedures and terms related to naming - which is the assigning of a word or phrase to a particular object or property...

of the "constitutional option". They argue that the filibuster of Bush's nominees effectively establishes precedent for a 60 vote threshold for approval of judicial nominees instead of the 51 vote standard required by an up-or-down vote. A number of existing Judges and Justices were confirmed with fewer than 60 votes, including Supreme Court

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

Justice Clarence Thomas

Clarence Thomas

Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....

(confirmed in a 52–48 vote in 1991).

Opponents of the nuclear option pointed to Senator Bill Frist

Bill Frist

's vote to filibuster Paez in 2000 as evidence that Frist supported the sixty vote threshold when it suited him. When a vote for cloture on the confirmation of Paez was called, 14 Senators voted to continue the filibuster, including Frist. 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

Democrats claimed the nuclear option was an attempt by Senate Republicans to hand confirmation power to themselves. Rather than require the President to 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."

Pro-nuclear option Republicans retorted that they had won recent elections and in a democracy the winners rule, not the minority. They also argued that while the Constitution requires supermajorities for some purposes (such as 2/3 needed to ratify a treaty), the Founders did not require a supermajority for confirmations, and that the Constitution thus presupposes a majority vote for confirmations.

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, however, since John G. Roberts was confirmed, no candidate has gotten more than 68 votes. Conservative nominees for Appellate Courts that were given a vote through the "Gang of 14" were confirmed almost exclusively along party lines: Priscilla Owen was confirmed 55-43, Janice Rogers Brown was confirmed 56-43, and William Pryor was confirmed 53-45.

June 2005 Supreme Court Justices
Name	Date confirmed / elevated	Senate vote	Senate minority	President	Reference
Stevens	December 17, 1975	unanimous	Republican	Gerald Ford, R
O'Connor	September 21, 1981	unanimous	Democratic	Ronald Reagan, R
Scalia	September 17, 1986	unanimous	Democratic	Ronald Reagan, R
Rehnquist	September 17, 1986	65–33	Democratic	Ronald Reagan, R
Kennedy	February 3, 1988	unanimous	Republican	Ronald Reagan, R
Souter	October 2, 1990	90–9	Republican	George H. W. Bush, R
Thomas	October 15, 1991	52–48	Republican	George H. W. Bush, R
Ginsburg	August 3, 1993	97–3	Republican	William Clinton, D
Breyer	July 29, 1994	87–9	Republican	William Clinton, D
Bush nominees
Priscilla Owen	May 25, 2005	55–43
Janice Rogers Brown	June 8, 2005	56–43
William H. Pryor	June 9, 2005	53–45

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

Cloture

, permitting a two-thirds majority of those present to end debate, and a further change in 1975 reduced the cloture requirement to three-fifths of the entire Senate. 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.

Advice and consent

Supporters of the nuclear option claim that Democrats obstructed the approval of the president's nominees in violation of the intent of the U.S. Constitution. President Bush had nominated forty-six candidates to federal appeals courts. Thirty-six were 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.

Article II, Section 2, of the U.S. Constitution says the president "shall nominate, and by and with the Advice and Consent

Advice and consent

Advice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts, describing a situation in which the executive branch of a government enacts something previously approved of by the legislative branch.-General:The expression is...

of the Senate, shall appoint ... Judges..."; opponents contend 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 indicated public support for an active Senate role in this "advise 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. 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."

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

Partisan appointments

Some fear that implementation of the nuclear option in the context of judicial nominations would allow the courts to be "packed" by a party that controls the other two branches of the government. As of April 2005, Republican presidents (who have occupied the White House for 24 of the past 36 years) have appointed a majority of the judges in 10 of the 13 federal appeals courts, seven of the nine justices on the Supreme Court and all four of the chief justices

Chief Justice of the United States

The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...

since the Truman administration.

In 1937, Franklin Delano Roosevelt, a Democrat, sought to alter the court through the Judiciary Reorganization Bill of 1937

Judiciary Reorganization Bill of 1937

The Judicial Procedures Reform Bill of 1937, frequently called the court-packing plan, was a legislative initiative proposed by U.S. President Franklin Roosevelt to add more justices to the U.S. Supreme Court. Roosevelt's purpose was to obtain favorable rulings regarding New Deal legislation that...

(a.k.a. "the court-packing plan"). Noting that the Constitution

United States Constitution

The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

does not specify a number of Supreme Court justices, the bill would have added a seat for every justice over the age of 70½, creating a new majority on the Court. Roosevelt allowed the bill to be scuttled after Justice Owen Roberts

Owen Josephus Roberts

Owen Josephus Roberts was an Associate Justice of the United States Supreme Court for fifteen years. He also led the fact-finding commission that investigated the attack on Pearl Harbor. At the time of World War II, he was the only Republican appointed Judge on the Supreme Court of the United...

began upholding the constitutionality of his New Deal

New Deal

The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...

programs.

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

President of the United States

and had a simple majority in both houses of Congress

United States Congress

The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

, as FDR's Democrats did in 1937, could quickly gain control of the Court as well.

Filibustering judicial nominees

In response to claims that the filibuster of judicial nominees is unconstitutional, opponents pointed out that the Constitution

United States 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 countered 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. Republicans also stated that the general rule in Parliamentary systems "is that majorities govern in a legislative body, unless another rule is expressly provided." Critics pointed out that the Senate is a less-than-democratic body that could conceivably allow a majority of senators, representing a minority of the national population, to enact legislation or confirm appointees lacking popular support.

Republicans pointed out that several Democrats once opposed the filibuster on judicial nominees, and only recently changed their views as they had no other means of stopping Bush's judicial appointees.

Republicans were staunch supporters of the filibuster when they were a minority party and frequently employed it to block legislation. Republicans continued to support the filibuster for general legislation—the Republican leadership insisted that the proposed rule change would 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 stated 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.

Other uses of "nuclear option"

Beyond the specific context of U.S. federal judicial appointments, the term "nuclear option" has come to be used generically for a procedural maneuver with potentially serious consequences, to be used as a last resort to overcome political opposition. In a recent legal ruling on the validity of the Hunting Act 2004

Hunting Act 2004

The Hunting Act 2004 is an Act of the Parliament of the United Kingdom. The effect of the Act is to outlaw hunting with dogs in England and Wales from 18 February 2005...

the UK House of Lords

House of Lords

The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....

used "nuclear option" to describe the events of 1832, when the then-government threatened to create hundreds of new Liberal

Liberal Party (UK)

The Liberal Party was one of the two major political parties of the United Kingdom during the 19th and early 20th centuries. It was a third party of negligible importance throughout the latter half of the 20th Century, before merging with the Social Democratic Party in 1988 to form the present day...

peers in order to force the Tory

Tory

Toryism is a traditionalist and conservative political philosophy which grew out of the Cavalier faction in the Wars of the Three Kingdoms. It is a prominent ideology in the politics of the United Kingdom, but also features in parts of The Commonwealth, particularly in Canada...

-dominated Lords to accept the Great Reform Act

Reform Act 1832

The Representation of the People Act 1832 was an Act of Parliament that introduced wide-ranging changes to the electoral system of England and Wales...

Changes to Senate rules

Historical backdrop

Clinton appointments: 1993–2000

Bush appointments: 2001–2006

Lines are drawn

"Extremist" judges

Nuclear option readied

Political motivations

Obstruction and a "power grab"

Democratic proposal

Republican counter-proposal

Critical mass

Gang of 14

Differing standards for consent

Simple majority

Three-fifths majority

Advice and consent

Partisan appointments

Filibustering judicial nominees

Other uses of "nuclear option"

See also

Supportive of nuclear option

Opposed to nuclear option

Myth and fact sheets

Other