On December 6, 2012, a senator filibustered his own proposal—a first, to the best of anyone’s recollection, in Senate history, a history already rich in parliamentary wonders. The senator in question was no less than Minority Leader Mitch McConnell, Republican from Kentucky. In another episode of the hyperpartisanship that had turned the institution into a free-fire zone of procedural warfare, McConnell thought he would make a proposal the Democratic majority would have to refuse, which would in turn embarrass President Obama. It did not go as planned.
The Democratic president and a Congress split between a Republican House and a Democratic Senate had been struggling over the national budget for more than a year. One part of this fight was yet another contest of partisan wills over increasing the debt ceiling, a legal limit set by Congress on the amount of debt the government can hold. Whenever the ceiling drew near, Congress tended to turn the unpalatable but unavoidable fiscal necessity of raising the limit into a surrogate for the fight over spending priorities and the deficit. One solution that had been kicking around for years, and that Obama and many Democrats supported this go-round, was to give the president the authority to raise the debt ceiling, thereby avoiding the political difficulties and partisan showmanship that accompanied every congressional effort to do this essential task. Adamantly opposed to the proposal, McConnell thought he could put the Democratic caucus in a tough position. His guess was that a majority of Democrats would vote against granting the president this kind of power, a power that might make sense but looked fiscally irresponsible.
Majority Leader Harry Reid, however, called McConnell’s bluff. He knew that Democratic senators would vote to pass the proposal. McConnell had moved unanimous consent to have an up-or-down majority vote on the debt ceiling measure. Reid said, fine, let’s do it. McConnell was forced to then object to his own motion. The minority leader reacted to Reid’s agreement to his proposal for a vote by “reserving the right to object,” adding, “Matters of this level of controversy always require 60 votes. So I would ask my friend, the majority leader, if he would modify his consent request to set the threshold for this vote at 60?”
Reid refused. In full possession of the procedural high ground, Reid described the trap McConnell had set for himself: “This morning, the Republican leader asked consent to have a vote on his proposal. Just now I told everyone we are willing to have that vote, an up-or-down vote. But now the Republican leader objects to his own idea. So I guess we have a filibuster of his own bill.”
For the benefit of the media and the few Americans watching C-SPAN, Majority Whip Richard Durbin immediately summarized and simplified what had just happened. Majority Leader Reid, Durbin explained,
said he would bring this to a vote in 20 minutes, and we would decide, up or down, whether the debt ceiling problem would be resolved once and for all under Senator McConnell’s proposal. Then Senator McConnell objected—objected—saying: No, no, we need 60 votes. For those who do not follow the Senate, 60 votes is the equivalent of a filibuster vote—breaking a filibuster vote. So this may be a moment in Senate history when a Senator made a proposal and, when given an opportunity for a vote on that proposal, filibustered his own proposal. I think we have now reached a new spot in the history of the Senate we have never seen before.1
This arcane bit of political circus created a small YouTube sensation and was the butt of satirical riffs on television.2 McConnell’s action was unique, but new spots, so to speak, in Senate history were getting to be a dime a dozen. McConnell’s auto-obstruction epitomized the constitutional dysfunction at the core of the Senate. McConnell and even his gleeful interlocutors perhaps unintentionally confirmed the ugly truth about the Senate—the chamber had become a supermajority institution wherein sixty votes was the decision rule for nearly any important matter before it. This episode was emblematic as well of the mounting frustrations over the filibuster. Pitched partisan battles and feckless compromises over the use and abuse of Rule XXII had become a nearly ongoing feature of Senate politics in the early twenty-first century. By this point in the Obama presidency, things seemed to be heading for a showdown. And that would come less than a year later, when push came to shove over one of the most contentious uses—by both parties—of the filibuster in recent years: against presidential nominations to the federal courts.
On November 21, 2013, the Senate decided that the “vote on cloture under Rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.” These few and perhaps obscure words embodied the most important change in Senate standing rules—or, to be precise, in their interpretation—since the threshold for cloture was lowered to three-fifths in 1975, and arguably since the creation of cloture in 1917. In the face of a Republican filibuster of some judicial nominations, a majority of Democrats agreed to radically reinterpret a Senate rule via a parliamentary ruling on a point of order. Just over three years later, on April 6, 2017, the Senate, under Republican control and with exclusively Republican support, voted to apply the same interpretation to nominations to the Supreme Court. Thus did the Senate remove its constitutional duty to give “advice and consent” on presidential nominations from the provisions of Rule XXII.
This was historic stuff. With these two actions an entire category of Senate business, one of its designated constitutional responsibilities, was protected from obstruction by the minority. The supermajority provisions of Rule XXII no longer applied to presidential nominations. Moreover, only a few years apart, a majority from each party voted to categorically restrict the filibuster. Finally, in each case the Democratic or Republican majority employed the same controversial method—often referred to as the “nuclear option”—to make these significant changes to a standing rule of the Senate. Instead of amending the wording of the standing rule, in this case Rule XXII, in both cases a member of the majority made a point of order to produce a parliamentary interpretation and ruling, which was then subject to a majority vote to sustain or overturn.
The so-called nuclear options were spectacular and controversial, and did bring significant change to the sixty-vote Senate. But they also highlighted an underlying reality: the Senate, often in concert with the House, had forged and used several other limitations, or “carve-outs,” that protected specific congressional actions from supermajority cloture in the Senate. Over the years, Congress has structured several statutory evasions of Senate filibusters and obstruction. In all these cases there is a statutory time limit on consideration that applies to both chambers. Taken together, when these exceptions are joined with the actions of 2013 and 2017, this constitutes a major diminution of supermajority politics. The supermajority Senate remains powerful but circumscribed and curtailed. Following the second recourse to the nuclear option in 2017, many senators and observers asked whether the Senate might be heading toward the end not only of the sixty-vote Senate but of supermajority cloture entirely, as the perceived interests in supermajority cloture are modified and as the norms that supported it are eroded.
The creation of the supermajority cloture procedure in 1917, as we have seen, was intended to limit minority obstruction and filibusters. Before this reform, the frustrations produced by some filibusters prompted the majority to consider the use of parliamentary maneuvers to curtail what they saw as the abuse of the Senate’s rules that protected the right of senators to speak for as long as they wished or could. One problem was that an ordinary simple resolution to change the rules directly by writing a new rule or revising an existing rule could be filibustered. And any proposal to add some form of majority cloture to the rules almost certainly would be subject to a determined filibuster. Could a parliamentary ruling be used to get around this obstacle?
Under Senate Rule XX, senators can pose parliamentary inquiries to the presiding officer. As the rule states, “A question of order may be raised at any stage of the proceedings, except when the Senate is voting or ascertaining the presence of a quorum.” Most questions of order are routine, but some call for careful interpretation by the presiding officer, and the ruling of the chair can be, in those instances, controversial and important. Any decision by the chair can be appealed to the Senate. Such an appeal is not debatable and decided by a majority vote. In general, the presiding officer is bound by the precedents of Senate practice and so would be unlikely to make a decision that flew in the face of the clear words of a standing rule and long-standing interpretation. But if an appeal of that decision is made and a majority overturns the ruling, then existing interpretations of rules can be undone by a simple majority. This opens the possibility to do via parliamentary ruling what could not be done or would be practically impossible to do within the constraints of the existing wording or interpretations of the rules. Thousands of such parliamentary rulings have shaped Senate (and House) rules and procedures, and dozens have been made on Rule XXII alone.3 But none of these fundamentally altered the cloture process until the nuclear option in 2013.
The idea of using a parliamentary ruling to end debate or curtail a particular filibuster goes back at least to the Senate’s battle over the federal elections bill (or “Force Bill”) of 1890 and 1891. As mentioned in chapter 5, this bill sought to use national authority to enforce the unambiguous command of the Fifteenth Amendment. Passed in the House and supported by the president, the bill faced a determined filibuster in the Senate by southern Democrats. In the face of this implacable opposition, the de facto leader of the Republican majority, Nelson Aldrich, introduced a proposal that would have changed Senate rules for the remainder of that session to allow cloture by majority after a reasonable period of debate had transpired. But Aldrich’s proposal for a “gag rule,” as his opponents inevitably dubbed it, could be filibustered too, and it was. So the Republican leader’s plan was to end debate on it through a parliamentary ruling and appeal. Aldrich planned to make a point of order that the debate on his cloture amendment had gone on long enough and was in effect dilatory. Success depended on having the presiding officer rule favorably on the point of order. If the filibustering minority then appealed the ruling, the majority could table the appeal—and a tabling motion is not subject to debate—by a majority vote. The ruling would stand, and Aldrich’s temporary cloture provision would have ended debate on the elections bill. This did not work out as planned. In short, enough Republican senators who opposed or preferred not to have to vote on the elections bill joined with the Democrats to displace it and move on to other business, effectively killing it.4 The point is that this tactic of using a parliamentary ruling instead of directly changing the rule was part of the battle over the filibuster well before the creation of Rule XXII.
As that reform to limit excessive debate evolved into a powerful tool for minority obstruction, senators contemplated and acted on ways to limit or curtail the filibuster. Rule XXII has been amended several times since its creation in 1917, including the reduction of cloture on all matters except proposed changes to the rules to three-fifths. As one might expect, these changes were accomplished by compromises that led to majority votes to change the wording of the rule. Behind these successful efforts, however, were not just political compromises but also threats posed by the ongoing possibility of using the other way to change the rules, not by changing the wording but by changing the interpretation of the rule as written.5
Such threats were motivated in part by Rule XXII’s compound frustration. First, the rule had become a tool of obstruction rather than a limitation of filibusters. Second, Rule XXII created and contained a formidable barrier to changing itself, let alone any other Senate rule. Any motion or measure to change a rule has required two-thirds of senators to invoke cloture (either two-thirds of the entire membership or, as is currently the case, two-thirds of senators present and voting). Any proposed alteration of the rules could be blocked even though sixty-six senators support it. This double frustration, with supermajority cloture itself and its entrenchment, invited senators to consider extraordinary measures to circumvent it through a parliamentary ruling.
Article I, section 5 of the Constitution specifies that “Each House may determine the Rules of its Proceedings.” One interpretation of this is that at any time, a majority of each chamber is allowed to decide what its rules should be. Again, this is how the House of Representatives has operated at the start of every new Congress. Leaning on the implication that each House can determine its rules by a majority vote, one option would be for a senator to raise a point of order at the start of the new Congress asking the presiding officer if that is not the case. Whether it should or must be done at the start of a new Congress is a matter of debate, but, much as the House of Representatives adopts its rules, whether amended or unaltered, at the outset of a new Congress, it is at least a logical place to offer such a motion. The presiding officer could rule that the point of order is correct, and if necessary be sustained by a majority vote of the Senate. If instead the chair ruled against the point of order, a majority of the Senate could overturn the ruling. In either case, the result would be to open the Senate to changes in the rules by a majority vote. This is most often referred to as the “constitutional option” because of its reliance on I, 5.6
We can do no better than the words of Vice President Richard Nixon, who articulated the logic of the constitutional option when it arose amid concerns about civil rights reform during the Eisenhower presidency:
It is the opinion of the Chair that while the rules of the Senate have been continued from one Congress to another, the right of the current majority of the Senate at the beginning of a Congress to adopt its own rules, stemming as it does from the Constitution itself, cannot be restricted or limited by rules adopted by a majority of the Senate in a previous Congress. Any provision of the Senate rules adopted in a previous Congress that has the expressed or practical effect of denying a majority of the Senate in a new Congress the right to adopt the rules under which it desires to proceed is, in the opinion of the Chair, unconstitutional.7
Nixon was speaking as the presiding officer of the Senate at the start of the Eighty-Fifth Congress in January 1957, in one of his first actions as the reelected vice president. But it was only an answer—albeit a carefully rehearsed one—to a parliamentary inquiry from Senator Hubert Humphrey. At that time, the Republican vice president from California and the Democratic senator from Minnesota were not strange bedfellows but allies in the cause of overcoming filibusters by southern Democrats. No formal action was taken after Nixon gave his opinion, so his words—however clear and forceful—had no direct effect on Senate rules or precedents.
The constitutional option was never tested. Threat of its use resulted in or at least facilitated compromises that often got reformers only part of what they, or some among them, sought. The constitutional option was perceived to be dangerous because it could have opened the door to unrelenting parliamentary warfare, including other attempts to make significant rule changes by reinterpretation rather than by changing the text of the rule itself. The imagined conflict and chaos that might ensue would later inspire some to label this the “nuclear option.” But from another perspective, such parliamentary rulings backed by majority votes have “been used throughout the history of the Senate and the House of Representatives” and could just as well be called the “conventional option.”8 In fact, Robert Byrd, that staunch defender of Senate tradition, used a ruling in 1980 to eliminate debate on the motion to proceed to nominations.9 Such actions, based as they are on Senate rules and practice, might be more or less controversial, but even their use to dramatically alter the filibuster in 2013 and 2017 did not prove to be very explosive, let alone nuclear.10
The threat of nuclear warfare in the Senate, however, was preceded by a series of almost uncontroversial restrictions on the reach of the filibuster and supermajority cloture. These limitations were put in place not by changing the rule itself or by the nuclear or constitutional option of a parliamentary ruling. Instead, they were written into ordinary legislation as exceptions or “carve-outs” that prevented minority obstruction of carefully specified categories of legislation or congressional resolutions. These laws contained provisions that added time limits on congressional action. These provisions—referred to as “fast-track procedures” or “carve-outs” or “majoritarian exceptions”—directly voided or restricted the rules of the Senate that allowed for minority obstruction.11
In 2003, as the Senate was heading into its first nuclear crisis over obstruction of President Bush’s nominees to circuit courts, Majority Leader Bill Frist testified before the Rules Committee in support of restrictions on the filibuster. As part of his argument, he provided a cogent summary of the scope and purpose of the legislative exceptions:
Mr. Chairman, the filibuster may be famous, but it is hardly sacrosanct. More than 25 statutes exist that curtail by law the right to unlimited debate. The most prominent of these is the 1974 Congressional Budget and Impoundment Control Act, which sets forth debate limitations on concurrent budget resolutions, reconciliation bills, and related amendments between Houses and conference reports. . . . The first of these debate-restrictive rulemaking statutes was enacted in 1939. Its enactment and the passage of so many provisions since, are evidence of the Senate’s willingness to curb unlimited debate to further particular public policy objectives.12
Frist’s mention of 1939 as the year of the first such exception reminds us that, in seeking the origins of many things that altered the balance of power between Congress and the president, we must go back to the New Deal. Despite a clear but essentially ignored ruling from the Supreme Court that Congress could not, in effect, delegate its legislative power to the president, Congress had gotten into the habit of at least sharing that power in novel ways.13 One relatively innocuous version came in the Executive Reorganization Act of 1939 to allow the president to submit plans to reorganize the executive branch directly to Congress. This legislation followed a departmental logic: allow the chief executive to decide on the best architecture and arrangements for many aspects of the branch he oversees. The president’s plan was privileged in several ways, including a time limit on committee consideration, a nondebatable motion to proceed, and a time limit on debate. This affected both chambers, but it directly voided all senatorial obstruction.
The Executive Reorganization Act of 1939 and its majoritarian carve-out were part of an era of increasing presidential power not infrequently facilitated and embraced by congressional action or deference. A few decades later Congress would begin to regret the powerful president it had helped create, especially in the form of Nixon’s “imperial presidency.” By the 1970s, it was not that the Senate was seen as particularly dysfunctional; instead, the presidency had become too dangerous and Congress as a whole too compliant or incapable of countering presidential power. As part of the reaction to the power of the presidency and to its inherent limitations in the era of the complex welfare-warfare state amid a rapidly changing world, Congress began to pass laws to facilitate its ability to act coherently and decisively by specific modifications of legislative procedure to expedite congressional action. The majoritarian carve-out could serve both purposes: to delegate power to the president and to help Congress counter presidential power.
The reaction to the imperial presidency produced, for example, the War Powers Act—enacted in November 1973 when Congress overrode Nixon’s veto—as an attempt to mandate congressional participation in the decision to start or extend the use of military force. Amid the attention and controversy swirling around this resolution, coming as it did in the wake of the Vietnam debacle and as the Watergate scandal was becoming a constitutional crisis, the provisions that created timetables for House and Senate action went unnoticed or seemed like common sense. But they were there to negate minority obstruction of any resolutions Congress might attempt to pass in keeping with its responsibilities in the War Powers Act.14 The War Powers Act was joined by the 1976 National Emergencies Act, which also tried to rein in presidential overreach. It too included expedited procedures, in this case, to consider any joint resolution to terminate a national emergency that had been declared by the president.15
This era produced two other major laws that circumvented supermajority cloture for specific legislation. The Budget Act of 1974 includes provisions that restrict or make exceptions to Senate rules to curtail obstruction and eliminate the possibility of veto by supermajority cloture. The goal was to bring order to what had been a fragmented legislative process, increasingly dominated by the executive branch, with little if any coordination among congressional committees. At the core of the budget act is the bicameral or concurrent budget resolution that sets revenue and spending (and deficit) targets for both chambers. An optional component is reconciliation, which mandates changes in law for direct spending programs and revenue to make the budget plan work. As part of this coordination, provisions were added to structure and limit debate and amendments on both the budget resolution and any reconciliation measures. The irony is that the reconciliation process, which was created as a circumscribed exception for purposes of passing a budget, evolved into a powerful vehicle for enacting major policy changes related to taxation and spending. The first major example of this was the Omnibus Budget Reconciliation Act of 1981, which was President Reagan’s mammoth package of tax reductions and spending cuts, essentially the opening shot and signal achievement of the so-called Reagan Revolution. Every president and Congress since has used this tool, often for major initiatives, including the Health Care and Education Reconciliation Act of 2010, which was instrumental in the passage of President Obama’s Affordable Care Act.16
Another major law from the 1970s, the 1975 Trade Act, for the most part enhanced presidential power and restricted congressional action, with the goal of reaching effective trade agreements. With Gerald Ford in the White House, the concern was less about an imperial president than about the state of the economy, including the first oil shocks and stagflation. In addition, Congress recognized that its parochialism was a problem: members of Congress were apt to play politics with any trade agreement and possibly scuttle it with amendments. Much like the budget law before it, the Trade Act put strict limits on House and Senate consideration. These restrictions in the Trade Act are commonly referred to as fast-track authority and are much like other majoritarian exceptions. These include immediate introduction of the president’s proposed agreement in both chambers, a forty-five-day limit on consideration by committees, privileged access to floor consideration with nondebatable motion, a vote in each house within fifteen days after committee consideration, and no amendments in committee or on the floor.17 The Trade Act did not make its provisions permanent, and so Congress has had to renew or extend it on several occasions. Such fast-track authority produced several trade agreements from the mid-1970s through the mid-1990s, including NAFTA. Although economic concerns and partisan politics stymied its reauthorization after the mid-1990s, George W. Bush got Congress to approve a five-year renewal in 2002, and Barack Obama worked with Congress to get another extension in 2015, with several agreements resulting, including the Trans-Pacific Partnership, from which President Trump withdrew in one of his earliest acts in office.
As a final example, Congress tied its own hands in decisions about military base closures. Between 1977 and 1987 Congress had prevented the closure of any large bases, but as the end of the Cold War came into view, Congress passed a law that evaded the politics that kept bases from being closed by delegating the most difficult decisions to an independent commission and the president and by limiting congressional participation in the process.18 The crucial restriction was that Congress had forty-five days after the president submitted the list of proposed closures or realignments during which a vote of disapproval could be taken, but with no changes or amendments allowed to the list. If Congress did not vote, the list went into effect automatically. The deadline and prohibition of amendments negated Senate obstruction and led to several rounds of closures and realignments.19
While the majoritarian carve-outs did their relatively quiet work of facilitating bicameral success in some areas of public policy, the Senate nevertheless gravitated toward greater levels of supermajority politics. There were more than enough remaining targets for filibustering, including one that had been rarely exploited: presidential nominations to the executive branch and the judiciary. The rise of the sixty-vote Senate in the 1990s and early 2000s had attracted general attention to and criticism of Senate practice. Part of the more partisan supermajority Senate was the minority obstruction of executive nominations. This drew particular scorn at times, in part because the filibuster of nominations was a largely new phenomenon. In the past, a largely bipartisan deference to the president in this shared power was an important factor; in general, a qualified nominee merited confirmation. Obstruction of nominations carried a normative, even constitutional, taint. We may or may not need a new Clean Air Act, but courts have to have judges to function as courts. We might want to stop a rush to war, but the president should be able to appoint an undersecretary of defense in a timely fashion.
In fact, the special status of appointments—as a shared power that involved the ability of other branches to do the tasks assigned to them in Articles II and III—was one of the arguments against supermajority cloture. From one perspective, presidential nominations of any variety could be seen as just another category of “measure, motion, other matter pending before the Senate” that were subject to the filibuster and supermajority cloture under Rule XXII. However, a strong case can be made—and some legal scholars and even senators from both parties have made it—that applying a supermajority procedure to nominations, particularly judicial nominations, is a rather specific violation or de facto amendment of the Constitution.20 Does the Senate have the constitutional license to block nominations to a co-equal branch, in effect evading its “advice and consent” relationship with the executive and interfering with the judiciary’s ability to function? “Advice and consent” includes, of course, the right to disapprove of a nominee. But here is a case where the Constitution is unambiguous that approval or disapproval is by a Senate majority, not supermajority. Otherwise it would make no sense to specify that treaties, the only other shared power with the executive, are to be approved by a two-thirds supermajority. The counterargument is that nothing in the Constitution mandates timely action on nominations or precludes other procedural mechanisms that might defeat a nominee short of a majority vote.21 Even the president, in this view, is under no obligation to nominate anyone in a timely fashion. This claim might be textually plausible, but it is constitutionally specious. If the president delayed nominations endlessly and the Senate filibustered the ones that were eventually made—and we at times have not been so far from this—can one sincerely argue the Constitution is working as intended, as its words directly imply?
Regardless of the constitutional and practical arguments, prior to the confluence of partisan polarization and the sixty-vote Senate particular nominations might be controversial owing to competence or scandal, but partisan obstruction of nominations was exceptional, in part because of the constitutional norms around executive and judicial appointments. Things began to change, however. In the eighteen years from 1949 through 1966 there were no cloture motions filed on executive nominations. From 1967 through 1992, a period of twenty-five years, there were twelve. In the fourteen years from 1993 through 2006 there were fifty-five, or nearly four per year.22 As a reminder, “Filibusters may occur without cloture being sought, and cloture may be sought when no filibuster is taking place.”23 Nevertheless, such a striking increase in cloture is a measure of the degree to which nominations had become a target of obstruction. And given the prominence in recent decades of holds, which are most often directed at nominations, cloture votes understate the rate of obstruction.
Obstruction of nominations was increasing from 1993 onward but did not produce a crisis until the presidency of George W. Bush, when Senate Democrats made a concerted effort to block a series of Bush’s nominations to the federal judiciary.24 The Senate of the 107th Congress started in 2001 with an historic 50–50 balance of Republicans and Democrats, with Vice President Dick Cheney holding the deciding vote if needed. Despite a few changes, it remained essentially a 50–50 Senate. The 2002 midterm elections hardly altered this, with Republicans having fifty-one seats versus forty-nine for the Democrats, including one nominal independent. Cloture was a particularly high hurdle for the majority during Bush’s first term, and this resulted in a series of failed cloture attempts on six of Bush’s circuit court nominations in 2003.25 Republicans claimed that the Democrats’ filibusters were the first to stop any appellate nominees and, with some debate over the exact status of Abe Fortas’s nomination in 1968, produced the first successful blockage of any nomination to the judiciary that had clear support from a majority of the Senate.26
In the middle of this struggle, the Senate Rules Committee held hearings to consider modifications to cloture for judicial nominations. Former majority leader Trent Lott summarized the case: “What we have witnessed over the past five months in connection with the nominations of Miguel Esterada and Priscilla Owen is a hijacking of the Senate’s Constitutional responsibility to advise and consent on the President’s nominations. A minority of Senators have literally re-written the Constitution to engraft a supermajority rule into the confirmation process, a requirement that completely contradicts the intent, spirit and language of the Constitution.”27 Put forward by Majority Leader Frist, the main option under consideration during the hearing was one quite familiar to Senate veterans and observers: the decreasing or sliding cloture. Associated with Senator Tom Harkin, who first proposed it in the 1990s when Democrats faced aggressive Republican obstruction, the sliding cloture would restructure that procedure such that the first cloture threshold on a particular matter would be sixty, but subsequent motions on the same issue, if necessary, would decrease from fifty-seven, to fifty-four, to fifty-one, to a simple majority of those present and voting. Senator Harkin sought to apply this to all matters before the Senate; Majority Leader Frist wanted to apply it only to judicial nominations.28 Such a change in the actual wording of Rule XXII probably would have required a two-thirds cloture vote to shut off debate on the proposed change. As a result, some Republicans had been considering the option of a parliamentary ruling all along. In fact, by early 2003 this potential tactic had acquired a new name. Senator Lott is credited with calling it the “nuclear option” because of its potentially explosive impact on Senate politics.29 Senator Frist was at first reluctant to go down this road, in part because he believed he did not have the votes in the closely divided Senate. But the majority leader was prepared to use the nuclear option if the Republicans picked up more seats in the 2004 elections, which they did, producing a 55–45 majority.30
It was in this environment that Majority Leader Frist threatened in early 2005 to use the constitutional or nuclear option to allow majority cloture on such nominations. Frist’s point of order would be that Rule XXII does not apply to judicial nominations because a de facto supermajority requirement flies in the face of the advice and consent provision of Article II power of executive nominations. Predictably, many GOP senators and conservative activists and pundits lauded the proposal as sensible and constitutionally necessary; for their part, many Democrats invoked the founders and the Senate’s special role to defend the filibuster.
This came to an orchestrated head in May when Republicans scheduled yet another cloture vote on the nomination of Priscilla Owen. The expectation was that it would again fail and that this would lead to Frist pulling the nuclear trigger. As partisan as the Senate was becoming, there were nevertheless enough relative moderates to block movement in either direction. Five senators from the Democratic side would be enough to control cloture (getting from fifty-five to sixty) and five Republican senators could stop the nuclear option (getting to fifty-one against a parliamentary ruling in its favor). So, as with the Cuban Missile Crisis, cooler heads prevailed and averted nuclear war in part through some mutual concessions. Moderates rounded up seven from each side of the aisle to form what would be known as the Gang of Fourteen, which produced a memorandum of understanding among the participants. The fourteen signatories pledged themselves to three important commitments: to vote for cloture on three particular nominations; that in the future, “Nominees should only be filibustered under extraordinary circumstances” (the interpretation of which was left to the discernment of the individual signers); and to oppose any changes in the rules during the 109th Congress that would have the effect of evading Rule XXII in the consideration of nominations.31
The nominations crisis of 2005 did not solve the problem of partisan obstruction over nominations or much of anything else. Like the real nuclear crisis of 1962, it averted the immediate threat of war and produced some measure of caution, but the potential for mutually assured destruction was only increasing. The 2005 crisis did, however, seem to confirm a historical pattern of similar filibuster crises: obstruction over a particular matter produces pressure for reform; would-be reformers threaten some form of change by parliamentary ruling; compromise ensues, and the crisis abates with at best moderate reform. Despite the anger and polarization, the Senate seemed to be captured by the rules it inherited; the perceived political costs of using the simple-majority constitutional option or the nuclear option were too high at the same time that the two-thirds barrier to rewriting the rules was insurmountable.32 There was no reason to expect a change in that quandary.
The 2008 election of Barack Obama as president with strong Democratic majorities in the House and Senate brought a reversal of fortunes and procedural interests to the Senate. With an initial 57–41 advantage, the Senate Democrats were joined by the independent senators Joe Lieberman of Connecticut and Vermont’s Bernie Sanders, followed by Arlen Specter of Pennsylvania, who changed party affiliation in April 2009. For a few months during the first year of the 111th Congress, Democrats had nominally sixty members in its caucus and the potential to break filibusters by a straight party vote. But that limited possibility ended in January 2010 with a special election in Massachusetts to replace Ted Kennedy, who had died in August 2009. The surprising victory of Scott Brown reduced the Democratic caucus to fifty-nine. Amid these changes, the relative success of united government during the 111th Congress muted the controversy over minority obstruction.33
The midterm elections of 2010 upended the House by producing a large Republican majority, and Senate Democrats were reduced to a 53 to 47 advantage, counting the two independents. Filibuster reform was in the air, pushed by some consistent advocates such as Democratic senator Jeff Merkley of Oregon. Instead of any fundamental changes, the new Senate opened with a January 2011 agreement for minor reforms that rested as much on pledges to adhere to better behavior as on any revisions in the rules. As Republican Lamar Alexander put it, “We have come to a consensus about a change in behavior, which I believe in the end will be more important than the change in the rules.”34 Little changed and nothing lasted. Minority obstruction, particularly applied to nominations, was becoming such a problem that the president made a proposal for direct and meaningful reform of the Senate rules during his 2012 State of the Union address. Americans, he noted, could not be blamed for being a “little cynical” for thinking that “nothing will get done in Washington this year or next year or maybe even the year after that, because Washington is broken.” “Some of what’s broken,” he continued, “has to do with the way Congress does its business these days. A simple majority is no longer enough to get anything—even routine business—passed through the Senate. Neither party has been blameless in these tactics. Now both parties should put an end to it. For starters, I ask the Senate to pass a simple rule that all judicial and public service nominations receive a simple up-or-down vote within 90 days.”35 The president was not asking for some form of the nuclear option. Instead, he was asking for a direct change in the language of Rule XXII such that all nominations from the executive branch would, in effect, become another majoritarian exception. The time limit of ninety days would allow extensive consideration and deliberation—even filibusters and obstruction—but with the guarantee of a majority vote within a reasonable amount of time. It was yet another reasonable proposal for cloture reform that, in the long run, would not advantage one party over the other but that would never surmount the two-thirds barrier protecting changes in Senate rules.
When the elections of 2012 gave Barack Obama a second term and slightly increased Democratic control to 55–45, more serious consideration of the nuclear option soon followed. Majority Leader Reid began the new Congress by holding open the first legislative day as a way to pressure Republicans and others less inclined toward reform into cutting a deal. A few weeks in the making, the deal was arcane and even less than what a sober realist might have expected under the circumstances. The most noted element was a change in Senate rules that created an optional new form of cloture on the motion to proceed. This was little more than a way to expedite noncontroversial measures that might be held up by just one or a few senators, empowering the majority and minority leaders to blow past this one potential obstacle.36 The whole of this reform was pretty much less than the sum of its parts, and the compromise was pretty much dead on arrival.
Tension built in 2013 as Republicans continued to block many nominations. The main controversy was over the vacant seats on the Court of Appeals for the District of Columbia, often thought of as the second most important court in the country. This court was effectively split 4–4, with three seats for President Obama to fill. Senate Republicans came up with a novel and risible justification for their effort to block any appointments to that court: it had such a light workload that replacements were not necessary.37 This was the last straw for Democratic senators, who had resisted, up to this point, any suggestions of going nuclear.38 Once the Democratic leadership was clear that it had the necessary votes, a carefully orchestrated event was set in motion.
The showdown finally came on November 21, when Majority Leader Reid moved to reconsider the cloture vote on the nomination of Patricia Millett, which failed by a 57–40 vote.39 When the majority failed to bring cloture, Reid raised a point of order that the “vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.” Following precedent and the game plan, the chair, Vermont Democrat Patrick Leahy, ruled against Reid’s simple majority motion. And, as planned, Reid appealed the ruling to the floor. After Leahy asked, “Shall the decision of the Chair stand as the judgment of the Senate?,” by a 48–52 vote the Senate did not sustain the chair’s ruling.40 The effect was to reinterpret Rule XXII as not applying to executive nominations except those to the Supreme Court, and that a simple majority could close debate on such nominations. Howls of protest and charges of hypocrisy ensued, but nuclear warfare never followed. What did follow that same day was a 55–43 vote to close debate on the Millet nomination. And as if to demonstrate the importance of what the nuclear option did, the next vote on the same day was a failure to invoke cloture, by 51–44, on a legislative matter, the Defense Authorization Act. Things got a little testy as the session came to a close in December and Republicans did their best to thwart the majority—they still had some tricks up their sleeves on nominations—but, given the years of polarization and obstruction by both sides, this hardly qualified as nuclear warfare. A significant number of nominations moved forward and received Senate confirmation by majority votes.41
Throughout the debate that led up to the nuclear option and after, senators and others were so busy pointing out their opponents’ rapid constitutional pirouettes that they did not notice their own hypocrisy. For syndicated columnist Charles Krauthammer, as an example, the 2013 Senate rule change was the latest outrage in an “outbreak of authoritative lawlessness” by Democrats and the Obama administration more generally.42 “What distinguishes an institution from a flash mob,” the columnist lectured, “is that its rules endure. They can be changed, of course. But only by significant supermajorities. That’s why constitutional changes require two-thirds of both houses plus three-quarters of the states. If we could make constitutional changes by majority vote, there would be no Constitution.” It might have surprised the House of Representatives and the nation of Great Britain to learn that they were flash mobs and that the latter had no constitution. Krauthammer employed, like so many filibuster apologists, the trompe d’oeil of equating Senate rules with the Constitution through his facile equation of institutions in general with supermajority procedures, which in turn implied that the Senate’s rules were the equivalent of the Constitution, deserving Article V–level protection from amendment. The argument was bad enough without adding the fact that Krauthammer made the diametrically opposite constitutional argument about exactly the same potential means and end in 2005, when Republicans were preparing to use the nuclear option. Back then the pundit argued the Democrats must “be stopped by a simple change of Senate procedure that would do nothing more than take a 200-year-old unwritten rule and make it written. What the Democrats have done is radical. What Frist is proposing is a restoration.” The Republicans “have a perfectly constitutional, perfectly reasonable case for demanding an up-or-down vote on judicial nominees.”43
Aside from the recriminations and general debate about its merit and impact, the Democrats’ recourse to the nuclear option in late 2013 had a fatal flaw. The argument that Rule XXII did not apply to nominations was weak enough; the argument that Rule XXII did not apply to nominations except for the Supreme Court was nonsensical.44 The result of a political compromise to ensure that the Democrats had enough votes to execute the nuclear option, the Supreme Court exception implied that this tactic was mostly a way around the rules to achieve a particular outcome, a matter of power over principle. When the tables turned, there was no principled basis for opposition because there was no justification for the exception.
And so, on April 6, 2017,45 the Republican Senate majority would invoke the nuclear option a second time, three years, four months, and one presidential election after the Democrats dropped the first bomb. As fate and irony would have it, this second use in the Senate was precipitated by a Supreme Court vacancy and President Donald Trump’s nomination of Neil Gorsuch to be the 101st associate justice to the Supreme Court. To start there, however, would be to skip the constitutional crisis—provoked by senate Republicans—that preceded that nomination, and the presidential election that made it possible.
Justice Antonin Scalia died unexpectedly the night of February 12 or very early the morning of February 13, 2016. Any Supreme Court nomination, especially during an era of partisan polarization and a deeply and closely divided Supreme Court, elicits intense interest and concern. Coming just nine months before a presidential election, with the campaign already in full swing, and involving the replacement for a historically important conservative justice, this nomination was expected to be as intense as any in American history. What surprised many ordinary Americans was that the Senate proceedings would turn out to be utterly unprecedented before Obama had even announced a replacement, even before Scalia had been buried—in fact, by the end of the day his death was discovered.
The very day that Scalia’s sudden passing shocked the country, Senate Majority Leader Mitch McConnell announced that the Senate should not confirm any nominee from Obama. In the words of one report: “The swiftness of McConnell’s statement—coming about an hour after Scalia’s death in Texas had been confirmed—stunned White House officials, who had expected the Kentucky Republican to block their nominee with every tool at his disposal, but didn’t imagine the combative GOP leader would issue an instant, categorical rejection of anyone Obama chose to nominate.”46 No such gauntlet had ever been thrown before a nomination to the Supreme Court, especially with nearly a year left in the term of the president who made the nomination. Moreover, McConnell soon made it clear that he would push for the nominee to not even be considered by the Senate; that is, the candidate would receive no consideration by the Judiciary Committee, let alone the nomination receiving debate and a vote on the floor of the Senate. Why? Partisan power is the obvious and only answer, but McConnell had a politically transparent justification. The Senate would not consider President Obama’s nominee because that decision and nomination should be left to whoever won the upcoming election.47 This produced a constitutional crisis—a crisis that, owing to the temper of the times, would be interpreted by the public in strictly partisan terms. Polling just after Scalia’s death revealed the extent to which Americans’ partisan and polarized interpretation shaped answers to nearly any question about government. While independents split down the middle, and 77 percent of Democrats thought President Obama should appoint the next Supreme Court justice, 82 percent of Republicans thought the choice should be left to the next president.48
The partisan assessments of the history of appointments and what the Constitution mandates were supplemented by vigorous public and scholarly debate about whether the Senate was obligated to consider and act on the nomination.49 Whatever the merits of the constitutional arguments, the only thing that mattered politically was Republican solidarity, which held firm. Obama’s nominee—the relatively moderate and supremely qualified Merrick Garland—was never considered by the Senate Judiciary Committee, let alone by the Senate as a whole. The controversy faded, at least for many Americans, as the presidential campaign and primary season went into full swing, with Donald Trump having emerged as the front-runner even by the time of Scalia’s death. But Democratic senators would not forget the Republicans’ unprecedented action, the refusal to even consider a presidential nomination for the Supreme Court. Less noticed was that the Republican majority had essentially shut down the confirmation process for nearly all judicial nominations to federal courts.50 Partisan ire was stoked further when, once Trump became the nominee and it looked like Hillary Clinton would win the election, some Republicans talked about blocking any and all of her judicial nominations.51 The principle of “letting the people speak” applied only if the people spoke correctly on November 8, 2016. By electing Donald Trump on that day, the people spoke in a historic fashion that no doubt surprised even many of the Republican senators who had staked such a bold if duplicitous claim on behalf the voters.
On January 31, 2017, just eleven days into his presidency, and less than two weeks before the anniversary of Scalia’s death, Donald Trump nominated Neil Gorsuch, a federal appeals court judge, to fill the Supreme Court vacancy that Republican Senators had kept open for eleven months for the new president to fill. As anticipated, the nomination set the stage for one of the first major tests of Democratic resistance to the new president’s agenda and the unity of the Democratic minority in the Senate, especially in response to what the Republicans had done to Merrick Garland, Obama’s nominee. A filibuster of the Gorsuch nomination was a near inevitability, and with only a two-seat majority the Republicans had no hope of reaching cloture if only a few of the more moderate and electorally vulnerable Democrats defected. Use of the nuclear option by Senate Republicans looked nearly as inevitable as the Democratic filibuster. Indeed, Majority Leader Mitch McConnell and other Republicans threatened its use if the Democrats would not allow a vote on the nomination.
As the Senate moved in early April toward the evident showdown, forty-four Democratic senators were counted as supporters of a potential filibuster against the nominee, meaning they would vote against cloture.52 Democrats evinced their unity and determination when on April 4 the forty-four voted against the motion to go into executive session to consider the nomination. The motion to proceed to executive session is not debatable, which means it cannot be filibustered and is decided immediately by a majority vote.53 This vote made it clear that there were forty-four votes to oppose cloture on the consideration of the nomination, and so the filibuster was under way. Majority Leader McConnell allowed a day of debate before bringing forward the cloture vote that would trigger the nuclear option. The lone highlight of that debate was another symbolic “Mr. Smith Goes to Washington” effort, this one by Oregon’s Jeff Merkley, who spoke for more than fifteen hours against the Gorsuch nomination on April 4 and 5, “from 6:46 p.m. Eastern Tuesday to 10:13 am Wednesday.”54 Otherwise several senators made rather predictable statements for and against the nominee, and Democrats such as Minority Leader Schumer insisted that sixty votes should be the threshold for approval of such a vital nomination (thereby admitting, as senators are wont to do without any sense of irony, that supermajority cloture is not a rule about debate but about power and coercion). In turn, Republicans had decided not to tolerate such obstruction beyond this rather modest length of time. In light of the precedent set a few years earlier and the illogic of the Supreme Court exception, there was no attempt at compromise, and Republicans did not spend much time wringing their hands over Senate traditions.55
Nor did they waste much time in finishing the job. On April 6, when the majority failed to reach cloture in a 55–45 vote with party unanimity on both sides, Majority Leader McConnell immediately raised “a point of order that the vote on cloture, under the precedent set on November 21, 2013, is a majority vote for all nominations.”56 Adhering to Senate precedent and the majority leader’s plan, the presiding officer ruled against McConnell. Following exactly in the steps of his predecessor, Harry Reid, McConnell then appealed the ruling of the chair. And by the same 48–52 margin as in 2013, the Senate did not sustain the chair’s ruling. The effect was to reinterpret Rule XXII as not applying to Supreme Court nominations, and that a simple majority could close debate on such nominations. Which is what then happened, by the same 55–45 vote that was insufficient only minutes before. The confirmation of Neil Gorsuch followed the next day, with fifty-four Republicans opposed by all forty-five Democrats.57
True to form, some Republicans referred to this use of the nuclear option, echoing Krauthammer’s words from the 2005 crisis, as a restoration rather than a revolution. In the words of Senator John Cornyn, who was first to speak following the cloture vote, the Senate had just restored “an almost unbroken tradition of never filibustering judges.” The veracity of this claim, like many others made that day in the Senate, was open to inspection. Cornyn, however, had not finished his point. It was, he continued, during the early years of George W. Bush’s administration “when some of our friends across the aisle, along with some of their liberal law professor allies, dreamed up a way of blocking President George W. Bush’s judicial nominees, and that was by suggesting that 60 votes was really the threshold for confirming judges, rather than the constitutional requirement of a majority vote.” While correct in pointing out the inaccuracy of any implication that sixty votes was the de facto requirement, or consensus threshold, for confirmation, Cornyn had trouble adhering to this perspective even in his short speech. “Later, in 2013,” Cornyn pointed out, “when there was a Democrat in the White House and it suited them to do so, they decided to do away with the same tool they used and went nuclear, lowering the threshold from 60 to 51 majority vote for circuit court nominees and district court nominees.”58
Rhode Island’s Jack Reed responded by harking back unconvincingly to what he maintained was the Democrats’ principled nuclear option four years earlier. “Even in 2013, at the height of Republicans’ partisan attacks on President Obama,” Reed argued, “Senate Democrats believed the Supreme Court was too important to subject to a simple majority vote. The Supreme Court is a coordinate branch of our government, and its lifetime appointees have final authority to interpret the Constitution. We understood then—as we do now—that the traditional 60-vote threshold to conclude debate on the highest Court in our nation was too important to the consensus-driven character of this body to sacrifice.”59
Some combination of hypocrisy and amnesia pervaded nearly every speech that day. “While it was always clear,” lamented John Thune, “that some Democrats would oppose any Supreme Court candidate the President nominated, I had hoped that partisanship would be at least somewhat limited. I had hoped the Democrats would want to preserve the Senate’s nearly 230-year tradition in confirming Supreme Court Justices by a simple-majority vote.”60 Richard Blumenthal tried to remind his Republican colleagues that the “obstruction of Merrick Garland’s nomination was . . . ‘the filibuster of all filibusters.’”61 Blumenthal knew, of course, that Garland’s nomination was not filibustered. Instead, he was pointing out the hypocrisy of the argument of his Republican colleagues: extolling as they were a 230-year tradition of not filibustering Supreme Court nominations while having only recently participated in an unprecedented partisan refusal to even consider a nomination, even before it was announced, with nearly a year left in a president’s term. As with the aftermath of the 2013 nuclear option, there were scattered lamentations and dire predictions about the future of the Senate if the filibuster was further restricted or eliminated altogether. Lindsay Graham warned that if the Senate went “down this road of doing away with the 60-vote requirement to pass a bill . . . that will be the end of the Senate.”62 Johnny Isakson, who had just voted to implement the second nuclear option, told his colleagues, “If we move toward a body that is a rubberstamp of the House or a unicameral government of legislation, we will never be the United States of America our Founding Fathers intended us to be.”63 The end of the filibuster would be not just the end of the Senate but perhaps of the nation as well, at least the nation supposedly desired by men who lived more than two hundred years ago, during slavery and before democracy, the Civil War, electricity, and the internet, to name just a few things.
What do the historic actions of the Senate taken in November 2013 and April 2017 tell us about supermajority cloture as a constitutional construction? Both votes were close, but each party demonstrated its willingness to take such an extraordinary step and categorically decrease the scope of potential filibusters. Even if partisan politics was front and center in the “nuclear options” that resulted in the elimination of nominations from the provisions of Rule XXII, Senate majorities from both parties—the Democrats in 2013 and the Republicans in 2017—embraced, even if implicitly, the principle that the Constitution did not countenance supermajority cloture for executive nominations. The extraordinary character of these events raises questions about why they happened when they did, and why in this manner, and aspects of this puzzle have been explored by political scientists.64 For our purposes, a precise explanation is not necessary. Both long-term and short-term forces were at work, just as in the start of the international wars studied by historians and political scientists. The levels of frustration over the gridlock had been building for decades, with nominations becoming a particular point of frustration amid the constant dueling between Reid and McConnell during the Obama presidency. At some level one reaches the unavoidable and perhaps tautological conclusion that the costs of doing business as usual came to outweigh the benefits, but that tells us very little about the decision-making of the leaders and rank-and-file in the Senate, particularly among the Democrats in 2013. What is clear is the historic and blunt restriction of the reach of supermajority cloture, and with it the loss of some of the luster and mythology attached to it.
With the nuclear option of 2017, constriction of Rule XXII by point of order had apparently reached its political and perhaps practical limits. Ending his speech prior to the April 6 ruling, Minority Leader Chuck Schumer said, “Let us go no further on this path.”65 A letter dated April 7 and signed by a bipartisan group of sixty-one senators implored the majority and minority leaders to help them preserve supermajority cloture for legislation.66 While senators showed little appetite for further curtailment of supermajority cloture, the president was ready to go all the way. Following the Republicans’ nuclear option in support of his Supreme Court nominee, President Trump more than once tweeted, with characteristic imprecision, his support for an end to all sixty-vote thresholds in the Senate, which is the first time a president had taken such a stance.67 The Senate, especially with Democrats in the minority, showed little interest in following the president’s lead. At the start of the Biden presidency and the 117th Congress, the Senate was split 50–50 between the two parties, but with Vice President Harris presiding, the Democrats exercised majority control. Before the new House had passed its first bill, concerns abounded about the Senate filibuster thwarting the agenda of the new administration and Democratic House and Senate, as did predictions about the likelihood of another nuclear option to further limit or end the filibuster.68 But with firm opposition to any such actions coming from at least two Democratic senators, meaningful filibuster reform seemed unlikely, even as support for further restrictions if not elimination built within the Democratic Party, aided by pressure from progressive groups and sectors of the media.69 The partisan politics of reform notwithstanding, the Senate of the filibuster and equal representation was standing out as the sore thumb of American democracy in need of fundamental change.