Filibusters, Cloture, and the “Nuclear Option”: the Current Debate Over Changing Senate Rules for Approving Judicial Nominations

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Filibusters, Cloture, and the “Nuclear Option”: The Current Debate Over Changing Senate Rules for Approving Judicial Nominations

March, 2005

Paul E. Stinson Janelle M. Smith Nixon Peabody, LLP

Abstract

This background research paper examines the possible use of a simple majority vote rule to end filibusters of federal judicial nominees in the United States Senate. Recently, political controversy surrounding filibusters of presidential judicial nominations has prompted some Senators to suggest the use of a Senate procedure for ending filibusters by simple majority vote. Currently, Senate Standing Rule XXII requires a 60-Senator majority for ending debate upon a nomination, and a 67-Senator vote for ending debate on a motion to alter the Senate Rules themselves. This procedure, deemed the “constitutional” option by its supporters and the “nuclear” option by its detractors, is essentially a means for bypassing the Standing Rules through alternate Senate procedures such as rulings from the Chair, motions to table, modifications of Senate precedents, and Standing Orders. The debates over both the use of the filibuster and the use of the nuclear option raise significant questions of constitutional interpretation, the historical record, and the nature of the Senate itself. This paper presents an outline of the major issues surrounding both debates, as well as a description of the option and how it might be implemented. Part I presents a brief introduction. Part II explores the history of the filibuster. Part III describes “cloture,” the method prescribed by Rule XXII for ending debate and, hence, a filibuster. Part IV examines the evolution of the filibuster, and explains how the filibuster today is both easier to implement and more frequently employed than filibusters in the past. Part V explores the constitutional issues surrounding the use of the filibuster in the context of judicial nominations. Part VI looks at the history of the “nuclear option,” prior attempts at using it to alter Rule XXII by majority vote, and the likely method by which it would be employed today to end current filibusters of federal judicial nominees. As throughout history, although the Senate may be ambivalent toward the use of the filibuster, it is equally or even more ambivalent about using the nuclear option to bypass its own rules. Despite the controversial nature of the filibuster, and especially of recent filibusters against judicial nominations, the Senate is wary of invoking the simple majority vote to eliminate this unique feature of Senate procedure.

2 I. Introduction The filibuster has gained national prominence in recent months as United States Senators have debated whether filibusters may be used to block judicial nominations. Some Republican Senators contend that Democrats have abused the filibuster because they blocked ten of President Bush’s 229 judicial nominees in his first term.1 Led by Senate Majority Leader Bill Frist, these Republican Senators are threatening to utilize a rarely-used parliamentary maneuver called the “constitutional” or “nuclear” option in order to change the Senate Rules, and vow to prohibit further use of the filibuster to thwart any federal judicial nominations.2 This white paper examines the current debate surrounding the so-called “nuclear option” and outlines the filibuster’s history, the cloture rule, the “modern” filibuster and the procedural steps required to invoke the option. The paper also analyzes the following question: if the use of the filibuster to block judicial nominations is unconstitutional, is the use of the filibuster to block or oppose regular legislation also unconstitutional? As will be outlined, the answer to this question is far from clear—a fact which has added to the Senate’s wariness about invoking the nuclear option. II. History of The Filibuster Popularly associated with long, windy speeches on the Senate floor, and notorious for its role in blocking civil rights legislation and bringing proceedings on Capitol Hill to grinding standstills, the filibuster has a colorful and ambivalent history in the Senate. Generally speaking, a filibuster is simply a tactic for delaying, blocking or forcing amendments to legislation, for obstructing judicial nominations, or for prompting other Senate action.3 Although the word “filibuster” did not gain prominence until the middle or late part of the nineteenth century, the

1 Helen Dewar & Mike Allen, GOP May Target Use of Filibuster, WASH. POST, Dec. 13, 2004, at A1; Charles Babington, GOP Moderates Wary of Filibuster Curb, WASH. POST, Jan. 16, 2005, at A5. 2 Id. 3 Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 STAN. L. REV. 181, 183-84 (1997) [hereinafter, Fisk & Chemerinsky, The Filibuster]; Richard S. Beth & Stanley Bach, Congressional Research Service, Filibusters and Cloture in the Senate 1 (2003) [hereinafter Beth & Bach, Filibusters and Cloture] (“More generally, however, ‘filibustering’ includes any tactics aimed at blocking a measure by preventing it from coming to a vote.”)

3 use of strategic tactics to delay debate “is as old as the Senate itself,” and has been the subject of both veneration and opprobrium for an equally lengthy period.4 In particular, the principal merit--and demerit--of the filibuster is the power it gives to a small minority (sometimes a single Senator) to delay and even completely derail the will of the Senate majority.5 This is due primarily to the fact that the Senate lacks rules for limiting debate.6 “In particular, the Senate rules establish no generally applicable time limits on the length of debate, nor any motions by which a majority could vote to bring a debate to an end.”7 The most the Senate rules have to say about the right of Senators to speak on the floor is contained in Rule XIX, which provides: When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.8

Rule XIX does not give the presiding officer any choice in recognizing which Senators may speak. So long as no other Senator has the floor, the presiding officer must recognize and

4 Fisk & Chemerinsky, The Filibuster, supra note 3, at 187-95. “In fact, the first filibuster was attempted in the First Congress.” John McGinnis & Michael Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 YALE L. J. 483, 496 (1995)[hereinafter McGinnis & Rappaport, A Defense]. 5 The word “filibuster” itself was borrowed from a term describing a particular type of mercenary warfare of the period and originally connoted “piracy and brigandage.” Fisk & Chemerinsky, The Filibuster, supra note 3, at 192. Thus the filibustero, or the one employing the delaying tactic, was seen as hijacking the business of the Senate and thwarting the operation of the government, often for what were considered personal or at least partisan motivations. Indeed, the use of the filibuster then, as now, “represented the use of procedural rules in the battle for power along sectional and party lines.” Id. See also, Sen. John Cornyn, Our Broken Judicial Confirmation Process and the Need for Filibuster Reform, 27 HARV. J. L. & PUB. POL’Y 181, 188 (2003) [hereinafter Cornyn, Filibuster Reform] (opining that the Democratic minority currently filibustering judicial nominations “has hijacked the process and will not allow the majority to conduct the nation’s business”). 6 Floyd M. Riddick & Alan S. Frumin, U.S. Congress, Senate, Riddick’s Senate Procedure: Precedents & Practices, S.Doc. 101-28, 101st Cong., 2nd sess., at 716-17 (Alan S. Frumin, ed., 1992) [hereinafter, Riddick’s Senate Procedure]. 7 Beth & Bach, Filibusters and Cloture, supra note 3, at 1. The only Senate rule that permits the body to vote on bringing consideration of a matter to an end (and hence ending a filibuster) is paragraph 2 of Rule XXII, known as the “cloture” rule. See infra, Section III. 8 Standing Rules of the Senate, R. XIX; see also Beth & Bach, Filibusters and Cloture, supra note 3, at 2; Christopher M. Davis & Walter J. Oleszek, Congressional Research Service, Cloture: Its Effect on Senate Proceedings 1 (2003); Riddick’s Senate Procedure at 716-17.

4 give the floor to any Senator who wishes to speak. “As a result, when the Senate is considering any debatable question, it cannot vote on the question so long as any Senator wants to be recognized to debate it.”9 Hence the possibility for the filibuster. Because the Senate rules place no constraints upon a Senator’s speech, once a Senator gains the floor he may speak as long as he wishes.10 Once that Senator concludes and yields the floor, another Senator may seek recognition and continue the debate. Debate can also be extended and multiplied by, for example, proposing amendments to the issue at hand, or by making a motion on a new issue, which in turn becomes debatable.11 Thus, in the past the filibuster became associated with marathon, days-, weeks-, or even months-long “talkathons,” during which various Senators would work together to assure that “debate” continued indefinitely upon a bill, amendment, motion or other matter, thereby preventing the Senate from voting upon it.12 The only non-statutory method for ending a filibuster without unanimous consent or rejection of the underlying motion or other issue is through the invocation of “cloture,” or a vote to end debate.13 Because Rule XXII, the Senate rule governing cloture, requires a “supermajority” of Senators (currently sixty) to invoke cloture and end debate on an issue, so long as forty-one Senators oppose such a vote, a filibuster can often continue indefinitely.14

9 Beth & Bach, Filibusters and Cloture, supra note 3, at 2. 10 Riddick’s Senate Procedure at 149. Thus the popular image of an exhausted Senator Jefferson Smith, as played by Jimmy Stewart, collapsing at the end of an hours-long filibuster in the film “Mr. Smith Goes to Washington.” 11 Beth & Bach, Filibusters and Cloture, supra note 3, at 3-4. Further delay may be imposed through demands for quorum calls and rollcall voting. Id. at 6-8. 12 Senator Strom Thurmond of South Carolina still holds the record for the longest speech ever made. His filibuster against the Civil Rights Act of 1957 on August 28-29, 1957, consumed 24 hours and 18 minutes. U.S. Senate, Committee on Rules and Administration, Senate Cloture Rule, committee print, 99th Cong., 1st sess. S.Prt. 99- 95, at 40 (Washington: GPO, 1985) [hereinafter, Senate Cloture Rule]. For a convenient, if abbreviated, collection of filibuster facts and historical summaries, see the Senate’s filibuster webpage, at http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm (last visited February 15, 2005). 13 Martin B. Gold & Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster, 28 HARV. J. L. & PUB. POL’Y 205, 211 (2005) [hereinafter Gold & Gupta, The Constitutional Option]. There are actually four methods for curtailing debate in the Senate: (1) tabling of motions; (2) unanimous consent agreements; (3) statutory provisions; and (4) cloture. However, absent a statutory provision or unanimous consent, cloture is the only method by which debate may be ended while preserving consideration of the underlying issue. Id. at 211-212. 14 Even if the sixty votes needed to invoke cloture exist from the beginning of a filibuster, a determined Senator can delay a vote on an issue—even an issue that most Senators support--for up to two weeks simply due to the (Footnote continued on next page)

5 III. Cloture Cloture is the only procedure short of unanimous consent by which the Senate can vote to end debate without also rejecting the bill, amendment, conference report, motion or other matter it has been debating.15 There are several steps to invoking cloture16: (1) First, at least 16 Senators must sign a cloture motion (called a “petition”) to bring debate to a close pursuant to the provisions of Standing Rule XXII. To present such a motion, a Senator may interrupt another Senator who is speaking. When the motion is presented, the clerk reads it. (2) The cloture motion then lies over until the second calendar day on which the Senate is in session. (3) The Senate votes on the cloture motion one hour after it convenes on the second calendar day after the cloture motion was filed, and after a quorum call has established the presence of a quorum. The time for the cloture vote may be changed by unanimous consent, and the required quorum call is often waived by the same means. (4) The presiding officer presents the cloture motion to the Senate for a rollcall vote at the time required by Rule XXII, even if the Senate had been considering other business between the time the cloture motion was filed and the time for voting on the motion arrives. (5) Pursuant to Rule XXII, the majority required to invoke cloture is three-fifths of the Senators duly chosen and sworn, or 60 votes if there are no vacancies in the Senate’s membership. However, invoking cloture on a measure or motion to amend the

(Footnote continued from previous page) timing requirements set forth in the Senate rules for cloture votes and votes on motions to proceed. Beth & Bach, Filibusters and Cloture, supra note 3, at 20. 15 C.M. Davis, Congressional Research Service, Invoking Cloture in the Senate 1 (2003) [hereinafter Davis, Invoking Cloture]; Gold & Gupta, The Constitutional Option, supra note 13, at 212. The first cloture rule (Rule XXII) was adopted in 1917. Richard S. Beth, Congressional Research Service, Cloture Attempts on Nominations 2 (2002) [hereinafter Beth, Cloture Attempts on Nominations]. Prior to this time, there were no limits on debate and, consequently, no dependable method for ending filibusters. 16 This summary is taken substantially from Davis, Invoking Cloture, supra note 15, at 1-2. See also Standing Rules of the Senate, R. XXII, ¶ 2.

6 Senate’s rules requires the votes of two-thirds of the Senators present and voting, or 67 votes if all 100 Senators vote.17 Voting for, or “invoking” cloture, does not bring consideration of that matter to an end; nor does it decide the matter at issue. Rather, “The primary effect of invoking cloture on a question is to impose a maximum of 30 additional hours for considering that question.”18 Although additional dilatory tactics are available to extend even this 30-hour period (a “post- cloture filibuster”)19, invoking cloture is an effective method—and, indeed, is the only method short of unanimous consent—for ending a filibuster while preserving the underlying issue. In short, unless a Senator opposing the filibuster is able to gain the 16 signatures necessary for a petition for cloture, and then the 60 votes needed to actually invoke cloture, a determined minority of Senators may prevent the issue being filibustered from ever coming to a vote while the Senate is in session.20 IV. The Modern, “Stealth” Filibuster In the past, filibusters were physically taxing affairs, both for the filibustering Senators, who had to speak more or less continuously21 or risk losing the floor, as well as for the non- filibustering Senators, who were required at all times to maintain a majority of Senators “duly chosen and sworn” to prevent the minority from forcing an adjournment due to the lack of a quorum.22 Due to changes in Senate procedures, however, the modern filibuster requires relatively little effort on any Senator’s part.

17 The Senate Rules may also be suspended by the unanimous consent of the Senate. Standing Rules of the Senate, R. V, ¶ 1. 18 Beth & Bach, Filibusters and Cloture, supra note 3, at 1, 13. Before 1979, there was no cap on post-cloture consideration; the only restriction in Rule XXII was the limit of one hour per Senator for debate. However, it was quickly discovered that this limitation was not very effective in preventing Senators from engaging in “post-cloture filibusters,” which extended debate well beyond the allotted time. The Senate responded by amending Rule XXII in 1979 to impose a definitive 100-hour cap on post-cloture consideration. The rule was further amended in 1985 to reduce this cap to 30 hours, thus effectively eliminating post-cloture debate and making the invocation of cloture a much more certain method of terminating a filibuster. Id. at 13-14. 19 Id. at 14. 20 Id. at 20. 21 Senators also must remain standing while speaking, although the rules do not prohibit a Senator from leaning against his desk, nor “from sipping milk during his speech.” Riddick’s Senate Procedure at 755, 758. 22 If, during a filibuster, it is determined that a quorum of the Senate is not present, “the Senate has only two options: to adjourn, or to take steps necessary to secure the presence of enough absent Senators to create a quorum.” Beth & Bach, Filibusters and Cloture, supra note 3, at 7; Standing Rules of the Senate, R. VI (quorum requirements).

7 Unlike the filibusters of old, which required that the Senate completely halt its other business while an issue was being debated, contemporary filibusters are generally silent and courteous, and demand no lengthy speeches or dramatic gestures.23 A primary reason for this change is the so-called “two track” system put into place in the Senate following the outcry over the repeated, prolonged, and highly contentious filibusters employed by Southern Senators in opposing the civil rights legislation of the fifties and sixties.24 Before the 1970s, the Senate was unable to consider other business while a filibuster was in progress. Thus, the filibuster was a powerful weapon in that an entire legislative session could be put on hold for weeks or months by a minority of filibustering Senators. The two-track system devised in the seventies by then-Majority Whip Robert C. Byrd and Senate Majority Leader Mike Mansfield allowed the Senate to spend the morning on the filibustered issue and the afternoon on other business.25 This benefited both the filibustering minority, by reducing the amount of time it had to hold the floor, as well as the non-filibustering majority, by allowing the Senate to enact other legislation even while a filibuster was in progress.26 However, a significant unintended consequence of the two-track system is that the use of the filibuster was essentially pushed underground and blended into the unseen, procedural workings of the Senate. Whereas in the past filibusters could generate a significant amount of press27, with Senators reading Shakespeare and recipes for “pot-likkers”28 into the Congressional Record and the government sitting at a standstill for weeks on end, the new “stealth filibusters” often attract no attention and require little effort to deploy.29 For the most part the long speeches,

23 Beth & Bach, Filibusters and Cloture, supra note 3, at 9; Fisk & Chemerinsky, The Filibuster, supra note 3, at 200-09. 24 Fisk & Chemerinsky, The Filibuster, supra note 3, at 201. 25 Id.; Gold & Gupta, The Constitutional Option, supra note 13, at 253. Fisk and Chemerinsky state that the two- track system was developed by Senator Mansfield, while Gold & Gupta name Senator Byrd. 26 Fisk & Chemerinsky, The Filibuster, supra note 3, at 201. 27 For example, news coverage of the filibuster against the Civil Rights Act of 1964, which tied up the Senate for seventy-four days, was “unprecedented: CBS News had Roger Mudd report on the progress of the filibuster from the steps of the Capitol during every newscast. The filibuster became such an epic event that news coverage itself became a news topic.” Id. at 199-200. 28 This occurred during Huey P. Long’s famous fifteen hour and thirty minute filibuster in June of 1935. See U.S. Senate, Historical Minute Essays, Huey Long Filibusters (2005), available at http://www.senate.gov/artandhistory/history/minute/Huey_Long_Filibusters.htm; U.S. Senate, Origins & Development, Filibuster and Cloture (2005), available at http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm. 29 Fisk & Chemerinsky, The Filibuster, supra note 3, at 200-03.

8 the comprehensive press coverage, and the public’s awareness of a filibuster in progress are gone. Indeed, the modern filibuster does not require that a Senator utter a single word on the floor, and in most instances the mere threat of a filibuster is sufficient to obtain the concession or compromise sought by the minority in connection with a given piece of Senate business.30 Along with the two-track system, the primary reason for this evolution in the filibuster is the change in the way the Senate itself operates. For one thing, the Senate is simply a busier place than it was a hundred or even forty years ago, and Senators have no time to indulge in prolonged debate on any issue, let alone a filibuster.31 The Senate floor has evolved “from being the central forum for debate to being merely a location for casting votes and addressing the media. Most deliberation occurs, if at all, in committees.”32 At the same time, the use of the filibuster has become so routine, and so prevalent, as to “shape much of the way in which the Senate does its work on the floor.”33 Filibusters are now so ubiquitous and easy to deploy that any indication by a Senator that an issue may be filibustered is usually sufficient to alter Senate behavior. This is because the invocation of cloture requires the votes of sixty Senators and thus, “A credible threat that forty- one Senators will refuse to vote for cloture on a bill is enough to keep that bill off the floor. The Senate leadership simply delays consideration of the bill until it has the sixty votes necessary for cloture.”34 In other words, although Standing Rule XXII says nothing about the votes needed to approve a judicial nomination (or any other matter), in the event of a filibuster or threatened filibuster, the rule essentially imposes a de facto 60-vote “supermajority” requirement for approval.35 This so-called “anti-majoritarian” aspect of the Rule (with respect to both legislative and executive matters before the Senate) has led many to question its constitutionality.36

30 In this way, “The modern filibuster is powerful in a way that filibusters even forty years ago were not: It offers minorities a stronger veto, and is used with less political accountability.” Id. at 186. 31 Id. at 202. 32 Id. 33 Beth & Bach, Filibusters and Cloture, supra note 3, at 20. 34 Fisk & Chemerinsky, The Filibuster, supra note 3, at 203. If a 60-vote majority cannot be obtained to invoke cloture, “the measure or other matter that is being filibustered is doomed unless its opponents relent and allow the Senate to vote on it.” Beth & Bach, Filibusters and Cloture, supra note 3, at 20. 35 “Filibusters are so ubiquitous in the contemporary Senate that it is now commonly said that sixty votes in the Senate, rather than a simple majority, are necessary to pass legislation and confirm nominations.” Fisk & Chemerinsky, The Filibuster, supra note 3, at 182. This is not necessarily a bad thing. In fact, one (Footnote continued on next page)

9 V. The Constitutionality of Using Filibusters to Block Judicial Nominations The present controversy concerns whether the filibuster and cloture rule are constitutional in the context of judicial nominations.37 Some Senators argue that the Senate should be permitted to end debate on judicial nominations by a simple majority vote, rather than a 3/5 “supermajority” as currently required under Senate Rule XXII, since the Constitution only requires the President to obtain the Senate’s “advice and consent” in appointing judges.38 Focusing on this advice and consent provision, these Senators typically limit their criticism about the filibuster and Rule XXII to judicial nominations only, and do not suggest that the filibuster and cloture rule are unconstitutional when employed to thwart general legislation.39 However, the constitutional distinction between these two uses of the filibuster is not so clear cut, raising concerns that invocation of the nuclear option to end filibusters on judicial nominations could set a precedent for future invocation of the option in other, wider contexts.

(Footnote continued from previous page) Congressional report concluded that, “generally, the possibility of filibusters creates a powerful incentive for Senators to strive for legislative consensus.” Beth & Bach, Filibusters and Cloture, supra note 3, at 23. Because Senators know that any measure they introduce could be filibustered, “a bill’s supporters have good reason to write it in a way that will attract the support of at least three-fifths of all Senators. Since 1980, neither party has ever held 60% of all the seats in the Senate. Thus, as long as this situation persists, every bill that the Senate passes must enjoy at least a minimal degree of bipartisan acceptance.” Id. 36 E.g., Cornyn, Filibuster Reform, supra note 5, at 181; Sen. Orrin G. Hatch, Crisis Mode: A fair and constitutional option to beat the filibuster game, NAT. REVIEW, Jan. 12, 2005, available at http://www.nationalreview.com/comment/hatch200501120729.asp (last visited Feb. 16, 2005) [hereinafter Hatch, Crisis Mode]; E. Martin Enriquez, Tyranny of the Minority: The Unconstitutional Filibuster and the Superimposed Supermajority on the Advice and Consent Clause of the Constitution , 21 T. M. COOLEY L. REV. 215 (2004); Babington, supra note 1, at A5. Of course, the Senate employs various other “non-majoritarian” procedures for altering, amending, or simply killing matters to which various Senators may be opposed. For example, the practice of requesting that the majority leader place a “hold” on a measure—thereby preventing its introduction for consideration upon the floor—has developed as an informal mechanism by which Senators may stymie the introduction of matters which they oppose, without doing so in person on the floor of the Senate. Beth & Bach, Filibusters and Cloture, supra note 3, at 22. And, of course, the committee system itself, by which the Senate conducts most of its business, effectively places decisionmaking power over various measures in the hands of those few Senators steeped in the particular knowledge relevant to the committee upon which they sit. E.g., Fisk & Chemerinsky, The Filibuster, supra note 3, at 217-21. 37 Dewar & Allen, supra note 1, at A1; Babington, supra note 1, at A5; see also, Cornyn, Filibuster Reform, supra note 5, at 191-94, 199-201; Hatch, Crisis Mode, supra note 36, at 2-3. 38 Id.; see also Amy Goldstein & Helen Dewar, President Criticizes Filibusters: Senate Majority Leader Offers Plan to Get Judges Confirmed, WASH. POST, May 10, 2003, at A6. 39 Id.

10 A. Are Filibusters Ever Constitutional? Disagreement about the filibuster’s constitutionality is not a new phenomenon.40 While the Constitution itself “is silent on the topic of filibusters” and neither “authorizes nor prohibits them,” arguments against the filibuster’s constitutionality are generally based on the Constitution’s text and interpretations of the framers’ intent.41 Because the Constitution specifically requires a super-majority in only seven situations, some filibuster opponents argue these explicit provisions prove that the framers envisioned implementation of majority-rule in other contexts.42 Additionally, critics of super-majority requirements assert that the Constitution mandates that legislation be passed by a majority vote in each House of Congress.43 Based on this view of the Constitution, some critics conclude that the filibuster itself is unconstitutional because it effectively requires “a super-majority of sixty votes to adopt legislation any time there is a filibuster.”44 The debate about the filibuster’s constitutionality remains unsettled.45 However, some constitutional scholars have rejected these textual and majoritarian arguments and have instead concluded that the filibuster is constitutional, without differentiating between its use as to judicial nominations and general legislation.46

40 Cornyn, Filibuster Reform, supra note 5, at 196-200; Fisk & Chemerinsky, The Filibuster, supra note 3, at 239- 44; see also Lloyd Cutler, The Way to Kill Senate Rule XXII, WASH. POST, April 19, 1993, at A23. 41 Id. 42 Cornyn, Filibuster Reform, supra note 5, at 196-97; Fisk & Chemerinsky, The Filibuster, supra note 3, at 239 n. 341. The seven situations are: (1) Article I, Section 3 (removal of an officer); (2) Article I, Section 5 (expulsion of a member of either House); (3) Article I, Section 7 (required vote to override a Presidential veto); (4) Article II, Section 2 (treaty power); (5) Article V (power to propose a constitutional amendment); (6) Amend. XIV, Section 3 (Congress’ ability to permit person who engaged in “insurrection or rebellion” to hold office, and; (7) Amend. XXV (procedure for determining the President is disabled). Id. 43 Susan L. Bloch, Congressional Self-Discipline: The Constitutionality of Supermajority Rules, 14 CONST. COMMENTARY 1, 2 (1997) [hereinafter Bloch, Congressional Self-Discipline]; Cornyn, Filibuster Reform, supra note 5, at 196-96; An Open Letter to Congressman Gingrich, 104 YALE L.J. 1539 (1995). 44 Id. 45 Id.; see also Cornyn, Filibuster Reform, supra note 5, at 181; Cutler, supra note 40, at A23. 46 E.g., Fisk & Chemerinsky, The Filibuster, supra note 3, at 239-41; McGinnis & Rappaport, A Defense, supra note 4 at 485-492 (defending super-majority voting requirements). Fisk and Chemerinsky, however, go on to evaluate whether the entrenchment of the filibuster rule is constitutional, and conclude that it is not. Fisk & Chemerinsky, The Filibuster, supra note 3, at 244-247; but see Virginia A. Seitz & Joseph R. Guerra, A Constitutional Defense of “Entrenched” Senate Rules Governing Debate, 20 J.L. & POLITICS 1 (2004) (defending entrenched rules as Constitutional).

11 B. The Constitutionality of Legislative As Opposed to Judicial Filibusters Aside from the constitutionality of filibusters generally, the question remains whether there is a valid basis for prohibiting their use as to judicial nominations but allowing them for general legislation. Senators who oppose judicial filibusters but favor legislative filibusters posit three arguments supporting this distinction.47 First, they argue that the “advice and consent” clause, which requires the President to obtain the Senate’s “advice and consent” to appoint judges, means approval by a simple majority of the Senate. Under this view, it follows that the Senate cannot undermine the clause through use of a filibuster which effectively creates a supermajority requirement.48 Second, proponents of this view contend that in contrast to the “the robust historical practice” of legislative filibusters, there is a “historical absence of filibusters of judicial nominations.”49 Finally, opponents of judicial filibusters argue that they “offend the constitutional structure and separation of powers” by allowing the Senate to usurp the President’s Article II power in appointing the judiciary.50 Review of these arguments, however, reveals that distinguishing between these two “types” of filibusters may not be defensible under the Constitution or historical practice. 1. The Textualist Argument: The “Advice and Consent” Clause The main source of support for the proposition that the filibuster is unconstitutional for judicial nominations is the Appointments Clause in Article II of the Constitution.51 One provision of that clause states: “[H]e [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.”52 This “advice and consent” provision is not one of the seven enumerated instances in which the Constitution specifically requires a super-majority—a fact, according to some critics of judicial filibusters, which supports the notion that the Appointments Clause

47 Cornyn, Filibuster Reform, supra note 5, at 194-206; Hatch, Crisis Mode, supra note 36, at 2-6; see also Dewar & Allen, supra note 1, at A1; Babington, supra note 1, at A5. 48 Id. 49 Cornyn, Filibuster Reform, supra note 5, at 199; John. C. Eastman, Federal Judicial Selection in the New Millennium: The Limited Nature of the Senate Advice and Consent Role, 36 U.C. DAVIS L. REV. 633, 638-46 (2003) [hereinafter Eastman, Federal Judicial Selection]. 50 Id. 51 Cornyn, Filibuster Reform, supra note 5, at 194-206; see also Dewar & Allen, supra note 1, at A1; Babington, supra note 1, at A5. 52 U.S. Const. art. II, § 2.

12 requires only a simple majority for approving judicial appointments.53 However, the Constitution also does not explicitly require a super-majority for passage of legislation. Rather, it is silent “about the vote needed to stop debate or pass a law.”54 Thus, determining whether the “advice and consent” provision supports differential treatment of judicial and legislative filibusters turns on the Constitutional meaning of “advice and consent,” and whether this language, in contrast to the Constitution’s silence on the percentage of votes needed to pass legislation, precludes using filibusters to block judicial nominations. While the Constitution creates a power-sharing scheme between the President and Senate for judicial appointments, it does not define the limits of the Senate’s “advice and consent.”55 The Constitution does not specify whether “advice and consent” means a majority only, and is silent on how the Senate and President should divide the appointment power.56 Like its treatment of legislative matters, the text says nothing about the vote needed to stop debate regarding a judicial nominee.57 Additionally, as with passage of legislation, Senate approval of judicial appointments is similarly absent from the enumerated instances when the Constitution specifies a super-majority requirement.58 Consideration of the framers’ intent concerning the relative power of the President and Senate on judicial appointments does little to clarify the text, and scholars disagree about the framers’ views on this issue.59 Thus, textualist arguments aimed at distinguishing judicial and legislative filibusters lack strong constitutional support.

53 Bloch, Congressional Self-Discipline, supra note 43, at 4; Cornyn, Filibuster Reform, supra note 5, at 194-206. 54 Fisk & Chemerinsky, The Filibuster, supra note 3, at 240. 55 Michael M. Gallagher, Disarming the Confirmation Process, 50 CLEV. ST. L. REV. 513, 519 (2003); Mark Tushnet, Principles, Politics & Constitutional Law, 88 MICH. L. REV. 49, 66 (1989) [hereinafter Tushnet, Principles]; Christopher Wolfe, The Senate’s Power to Give “Advice and Consent” in Judicial Nominations, 82 MARQ. L. REV. 355, 364 (1999) [hereinafter Wolfe, The Senate’s Power]. 56 Id. 57 Id.; see also Fisk & Chemerinsky, The Filibuster, supra note 3, at 240-41. 58 Cornyn, Filibuster Reform, supra note 5, at 196-97; Fisk & Chemerinsky, The Filibuster, supra note 3, at 239 n. 341. 59 Eastman, Federal Judicial Selection, supra note 49, at 640-48; Laura T. Gorjanc, Note, The Solution to the Filibuster Problem: Putting the Advice Back in Advice and Consent, 54 CASE WES. RES. 1435, 1450-52 (2004) [hereinafter Gorjanc, The Solution to the Filibuster Problem]; Tushnet, Principles, supra note 55, at 66- 68; Wolfe, The Senate’s Power, supra note 55, at 355-58.

13 2. Whether History Permits Differential Treatment A second argument favoring disparate treatment of judicial and legislative filibusters relies on “the historical absence of filibusters of judicial nominations.”60 Adherents of this view contend that the judicial filibuster lacks an established history and therefore does not deserve the same type of deference as its more venerable legislative counterpart.61 However, others have pointed out that the legislative filibuster itself lacks any coherent “history” in the Senate, especially since the advent of the historically unprecedented “stealth” filibuster in the 1970s.62 In addition, critics note that some Senators currently lobbying for the abolition of the judicial filibuster have themselves employed it in the past.63 Thus, although the judicial filibuster may be a more recent phenomenon than other types of filibusters, this fact in and of itself provides a questionable basis upon which to judge its constitutionality. 3. The Separation of Powers Argument A final argument for differentiating between judicial and legislative filibusters is that permitting the Senate to filibuster judicial nominations impermissibly usurps the President’s power under the Appointments clause.64 Critics assert that “[f]ilibusters of judicial nominations arguably offend the constitutional structure and separation of powers because they effectively reorder the Constitution’s allocation of executive power with respect to appointments” by “increasing the number of Senators needed to confirm a judge.”65 Adherents of this view argue that the framers gave the President greater power than the Senate in nominating and appointing

60 Cornyn, Filibuster Reform, supra note 5, at 199-201. 61 Id. For instance, judicial nominations were not even included within the scope of the cloture rule until 1949. Gold & Gupta, The Constitutional Option, supra note 13, at 229. 62 Fisk & Chemerinsky, The Filibuster, supra note 3, at 185-209 (concluding that “the filibuster, as currently used, is not part of an age-old and inviolate Senate tradition of unlimited debate.”); see also supra Parts II-IV. 63 E.g., Judicial Nominations, Filibusters and the Constitution: When a Majority Is Denied Its Right to Consent: Hearing Before the Subcomm. On the Constitution, Civil Rights and Property Rights of the Senate Comm. on the Judiciary, 108th Cong. 6, 11 (2003) (statements of Senators Feingold and Schumer). For example, the nomination of Abe Fortas to serve as Chief Justice of the Supreme Court was filibustered in 1968. And between 1980 and 2002, cloture motions were filed on 14 Court of Appeals and District Court nominations. Beth, Cloture Attempts on Nominations, supra note 15, at 3-6. Specifically, cloture petitions were necessary in 2000 to obtain votes on the President Clinton’s nominations of Richard Paez and Marsha Berzon to the Ninth Circuit, after opponents repeatedly delayed action on them—for over four years in Paez’s case—and then openly declared a filibuster. See, e.g., 146 CONG. REC. S. 1336 (2000) (statement of Sen. Smith). 64 Cornyn, Filibuster Reform, supra note 5, at 201-206; Eastman, Federal Judicial Selection, supra note 49, at 657- 62. 65 Cornyn, Filibuster Reform, supra note 5, at 201.

14 judges.66 Further, they interpret “advice and consent” as permitting a simple majority of Senators to approve executive nominations.67 Thus, it follows under this reasoning that judicial filibusters impermissibly allow the Senate to impinge upon the President’s appointment power by effectively requiring a super-majority of sixty votes to confirm a nominee any time there is a filibuster.68 However, other commentators disagree with this conclusion. Instead, they suggest that the President and Senate are meant to equally share power under the Appointments Clause and that the Constitution’s structure invites conflict between the President and Senate concerning judicial nominations.69 Those who interpret the Constitution as giving the Senate a greater role in judicial appointments argue that the Senate must counteract the President’s ambition with its own in order to achieve a proper balance of powers.70 Additionally, these commentators assert that rather than providing clear guidance about the Senate’s role in giving the President “advice and consent,” the framers’ debates on this issue reveal tension about which entity should wield greater influence in appointing judges.71 This understanding of the Appointments Clause suggests that super-majority requirements are constitutional within the scope of “advice and consent” and that they do not violate the separation of powers doctrine.72 Thus, as with the textualist and historical arguments, the separation of powers argument does not provide a strong basis for differentiating judicial and legislative filibusters given the ambiguity of “advice and consent” and the framers’ intent.73

66 Eastman, Federal Judicial Selection, supra note 49, at 638-648. 67 Cornyn, Filibuster Reform, supra note 5, at 195-99; Hatch, Crisis Mode, supra note 36, at 2-3; Bloch, Congressional Self-Discipline, supra note 43, at 2-5. 68 Cornyn, Filibuster Reform, supra note 5, at 199-205. 69 Michael J. Gerhardt, Supreme Court Selection as War, 50 DRAKE L. REV. 393, 394 (2002); Gorjanc, The Solution to the Filibuster Problem, supra note 59, at 1455-57. 70 Tushnet, Principles, supra note 55, at 65-67. 71 Id.; see also Wolfe, The Senate’s Power, supra note 55, at 356-58, 364. 72 Id.; see also Press Release, Senator Robert C. Byrd, Remarks by U.S. Senator Robert C. Byrd: Stopping a Strike at the Heart of the Senate (March 1, 2005) (on file with authors); Gorjanc, The Solution to the Filibuster Problem, supra note 59, at 1454-56; Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 524- 26. 73 Id.

15 VI. The “Nuclear Option” Debate on the constitutionality of filibusters of judicial nominations is now at the forefront of national politics since President Bush has renominated several individuals who faced Senate filibusters last term.74 Frustrated by the current use of the filibuster to prevent simple “up or down” votes on judicial nominations, some Senators would like to see Senate Rule XXII modified to require progressively fewer votes for invoking cloture as a judicial nomination filibuster proceeds, until a filibuster could be broken by a simple 51-vote majority.75 According proponents of this proposal, this modification of the Rule would pertain only to judicial nominations, not to legislation.76 However, the Republicans currently enjoy only a 55-member majority in the Senate. Thus, unless they can gain Democratic support for their position, the GOP has neither the 60 Senators necessary to invoke cloture to end debate on a judicial nomination, nor the 67 votes needed to modify Standing Rule XXII to relax the voting requirements. The only way around the problem is to exploit those Senate Rules or practices that require only a simple majority to apply. The practice hit upon by some Republicans, is a “seldom-used, complicated and highly controversial parliamentary maneuver” referred to in current media reports and the Congressional Record as the “constitutional option” by the GOP77 and the “nuclear option” by the Democrats.78 A. Historical Background of the Option From the time Rule XXII was established in 1917, Senators have opposed its voting requirements on the ground that they conflict with the Constitution’s provision that “Each House may determine the Rules of Its Proceedings . . . .”79 As first raised by Senator Thomas J. Walsh in 1917, the argument against the constitutionality of Rule XXII’s voting requirements mirrors

74 Michael A. Fletcher & Charles Babington, Bush Tries Luck Again With Judicial Nominees, WASH. POST, Feb. 15, 2005, at A5. 75 Goldstein & Dewar, President Criticizes Filibusters: Senate Majority Leader Offers Plan to Get Judges Confirmed, supra note 38, at A6. 76 Id. 77 This appellation is taken from the Gold & Gupta article, which sets forth a history of and an outline for employing the option to alter the Senate rules. See Gold & Gupta, The Constitutional Option, supra note 13. 78 Helen Dewar & Mike Allen, GOP May Target Use of Filibuster, WASH. POST, Dec. 13, 2004, at A1; Charles Babington, GOP Moderates Wary of Filibuster Curb, WASH. POST, Jan. 16, 2005, at A5. 79 U.S. Const., art. I, § 5.

16 that of the arguments against “supermajority” voting requirements on judicial nominations. That is, when the framers wanted to provide for supermajority requirements they did, and absent any explicit requirement in the Constitution, all other congressional business should be decided by majority vote.80 In the context of rule making, this argument gains further support from the basic constitutional principle that one legislature cannot bind subsequent legislatures, and thus that each “new” Senate (i.e., each new session of the Senate) must have the same power as those that went before to adopt its own rules.81 Thus, the argument goes, each new Senate has a “constitutional option” to accept or reject—by majority vote—the rules imposed upon it by previous Senates. Should no such vote be taken, a Senate may indicate its acquiescence to be bound by operating under the prior rules without objection.82 Until that time, a new Senate operates under so-called “traditional parliamentary principles,” which include procedural mechanisms such as the now-defunct “motion for the previous question” for controlling filibusters.83 Although use of the option to change Senate rules has been attempted at least four times in the past, each time the Senate has amended its rules it has ultimately followed the rules- change procedures set forth in the rules themselves.84 This reflects both an uncertainty as to the constitutional basis for the use of the option, as well as an expressed concern on the part of some Senators that starting each new session of the Senate without any rules would result in “chaos.”85 Nevertheless, the threat of invoking the constitutional option has often been the basis and impetus for such changes, as demonstrated by the intricate procedural mechanisms by which Rule XXII was ultimately amended in 1975 to require only a 3/5 vote for invoking cloture, while

80 See Gold & Gupta, supra note 13, at 219-26; Fisk & Chemerinsky, supra note 3, at 245-52. 81 Fisk & Chemerinsky, supra note 3, at 247-48. 82 As noted by Senator Walsh, although the Senate has apparently always operated under the assumption that the rules are continuing in force, this assumption has never been directly challenged. Gold & Gupta, The Constitutional Option, supra note 13, at 220; 55 CONG. REC. 8 (1917) (statement of Sen. Walsh). 83 Gold & Gupta, The Constitutional Option, supra note 13, at 220; 55 CONG. REC 16 (1917) (statement of Sen. Walsh). 84 Gold & Gupta, The Constitutional Option, supra note 13, at 260. 85 Id. at 225. For instance, Senator Warren Harding responded to Senator Walsh’s arguments by stating: “I am not ready to accept the soundness of the Senator’s argument, that this is not a continuing body; and I cannot accept the contention that we must first enter into a state of chaos in order to bring about the reform which the Senator seeks.” Id.; 55 CONG. REC. 16 (1917) (statement of Sen. Harding).

17 retaining the 2/3 requirement for invoking cloture on debate over changes to the rules themselves. B. Use of the Option to Precipitate Changes to Rule XXII The constitutional (or, in current terminology, “nuclear”) option was re-introduced by Senator Clinton P. Anderson in 1953, in an attempt to end civil rights filibusters.86 At the opening of the 83d Congress advocates of majority rule in the Senate challenged the conception of the Senate as a continuing body. They based their strategy on the contention of Senator Walsh in 1917 that each new Congress brings with it a new Senate, entitled to consider and adopt its own rules. They proposed to move for consideration of new rules on the first day of the session and, upon the adoption of this motion, to propose that all the old rules be adopted with the exception of Rule XXII. Rule XXII was to be changed to allow a majority of all Senators . . . to limit debate after 14 days of discussion.87

Opponents of the Anderson motion argued vigorously that the Senate was in fact a “continuing body,” and was thereby bound by the rules of earlier Senates. The principal contentions in support of this view were that: (1) only one-third of the Senate is elected every two years (and thus two-thirds continues); (2) the Constitution does not provide for the adoption of new rules every two years; (3) if the Senate had the power to adopt new rules, it had lost that power through disuse; and (4) the Supreme Court, they claimed, had decided that the Senate was not a “continuing body.”88 Anderson’s opponents prevailed and the motion was ultimately rejected by a tabling vote of 21 to 70. 1. The Failed 1969 Attempt The option was again raised in 1969, at the beginning of the 91st Congress, during which Senators Frank Church and James Pearson introduced Senate Resolution 11, which would have amended Rule XXII to require only a 3/5 vote for the invocation of cloture, rather than the rule’s then-existing 2/3 requirement. The strategy required a favorable ruling by the Chair, Vice President Humphrey, that a simple majority could invoke cloture on any motion to take up a resolution, or on the resolution itself, when a change in the rules was being attempted at the start

86 Gold & Gupta, The Constitutional Option, supra note 13, at 232. 87 Senate Cloture Rule, supra note 12, at 23. 88 Id. at 23-24. In addition, the Senate rules themselves provide that, “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” Standing Rules of the Senate, R. V, ¶ 2.

18 of a new Congress.89 In other words, the option depended upon the willingness of the Chair to go along with the argument that each new Senate has the ability, by majority vote, to enact its own rules, and to dispense with those enacted by prior Senates. In 1969, Vice President Humphrey acquiesced in this approach, declaring: “On a par with the right of the Senate to determine its rules, though perhaps not set forth so specifically in the Constitution, is the right of the Senate, a simple majority of the Senate, to decide constitutional questions.”90 In this case, the “constitutional question” was “the validity of the Rule XXII requirement for an affirmative vote by two-thirds of the Senate before a majority of the Senate may exercise its right to consider a proposed change in the rules.”91 Thus, because the Senate was to decide constitutional questions by majority vote, a decision in this case to invoke cloture at the beginning of a Senate session by majority vote would be akin to declaring that Rule XXII’s supermajority requirement was unconstitutional. Such a decision, Humphrey announced, the Chair would be bound to uphold.92 However, although the Senate initially voted to invoke cloture 51-47, this decision was subsequently appealed and reversed on a 45-53 rollcall vote, and a subsequent attempt to invoke cloture by majority failed on January 28, 1969.93 2. The Failed 1971 Attempt A similar battle, waged by the same Senators, occurred in 1971. However, this proposed Resolution failed because Vice President Agnew, as Chair, stated that he would refrain from making any ruling as to whether a simple majority could invoke cloture on a resolution to alter Senate rules or on a motion to take up such a resolution. Instead, he would submit any such question to the Senate itself.94 Thus, Senators Church and Pearson were forced to operate under

89 Senate Cloture Rule, supra note 12, at 28. 90 Id. In support for his position, Vice President Humphrey cited a landmark advisory opinion rendered by former Vice President Richard Nixon in 1957, in which Nixon had reasoned that “because no Senate could deny a future Senate the ability to exercise a constitutional right, and because Rule XXII, paragraph 3, ‘in practice’ prevented a majority of Senators from adopting new rules, Rule XXII, paragraph 3 was unconstitutional.” Gold & Gupta, The Constitutional Option, supra note 13, at 239, 251 n.299; 85 CONG. REC. 178 (1957) (statement of Vice President Nixon). 91 Senate Cloture Rule, supra note 12, at 28. 92 “If the Chair were to announce that the motion for cloture had not been agreed to because the affirmative vote had fallen short of the two-thirds required, the Chair would not only be violating one established principle by deciding the constitutional question himself, he would be violating the other established principle by inhibiting, if not effectively preventing, the Senate from exercising its right to decide the constitutional question.” Id. 93 Id. at 29. 94 Id. This would mean, of course, that the question would be open to debate, and hence subject to filibuster.

19 Rule XXII’s 2/3 requirement, their resolution was filibustered, and their attempts to garner the votes necessary to end debate failed.95 3. The 1975 Success Ultimately, in 1975 Senator Pearson prevailed in his attempts to amend Standing Rule XXII through the introduction of Senate Resolution 4. In the course of moving for consideration of his Resolution, Pearson again moved to set the motion for majority vote, on the ground that Rule XXII’s supermajority requirement was unconstitutional. Rather than resolving the question of whether majority cloture could be invoked to change the Senate rules, Vice President Rockefeller, as presiding officer, indicated his intention to permit the Senate to decide the question by putting it to a motion to table.96 The Senate voted 51-42 to table the question, thus temporarily endorsing (or at least suspending objection to) the notion that majority cloture may be invoked to change Senate rules at the start of a session. In other words, Rockefeller, like Humphrey before him, agreed to allow the Senate to decide the “constitutional question” before it, through the expedient procedure of a motion to table. Subsequently, after passing an amended version of Resolution 4 (which implemented the current 3/5 – 2/3 distinction), the Senate voted to reverse the motion to table. Then, the following day, it voted on the original question of whether amending the Senate Rules by majority vote violated Rule XXII. This time, a majority of the Senate agreed that it did, thus erasing the precedent of majority cloture established two weeks before, and reaffirming the “continuous” nature of the Senate rules.97 C. The Current Plan for Employing the Option Although nominally based on the notion that Standing Rule XXII’s “supermajority” requirements are unconstitutional in various contexts, the constitutional or “nuclear” option is essentially procedural. Its efficacy depends upon two principal factors: (1) the willingness of the

95 Id. 96 Any debatable question that the Senate considers can be filibustered. Beth & Bach, Filibusters and Cloture, supra note 3, at 11. However, a motion to table is a nondebatable motion requiring only a majority vote by the Senate to be accepted. Davis, Invoking Cloture, supra note 15, at 1; Riddick’s Senate Procedure at 785; Standing Rules of the Senate, R. XXII, ¶ 1. Unlike cloture, a motion to table cannot be used to conclude a debate when Senators still wish to speak and to enable the Senators to vote for the proposal being considered. Rather, to “table” a question, amendment, or other matter is to reject it completely--that is, to kill it. For instance, Senators often dispose of amendments by voting to table them, rather than by taking a so-called “up or down” vote (i.e., to agree or not to agree) on the amendment itself. Beth & Bach, Filibusters and Cloture, supra note 3, at 4. 97 For a more detailed account of this procedure see, Senate Cloture Rule, supra note 12, at 119-21.

20 Chair, in this case Vice President Cheney, to allow the Senate to vote on the validity of Rule XXII, i.e., through a non-debatable motion to table; and (2) the willingness of a majority of the Senate to vote for such a motion to table. Should the Senate vote, by majority, to table the question, then Rule XXII would be temporarily suspended and the Senate could also put to vote and, theoretically, pass by a majority a resolution altering Rule XXII to allow for the invocation of cloture on judicial nomination by less than 3/5 of the Senate.98 Or, more simply, the majority could simply put a judicial nominee to the “up-or-down” vote that it contends the Constitution requires. Indeed, this appears to be the current strategy for employing the option.99 Proponents of the strategy have indicated that they would call upon Vice President Cheney to determine whether the operation of Rule XXII’s 3/5 voting requirement for nominees is unconstitutional because it violates the “advice and consent” provision of the Constitution.100 However, as noted above, the Vice President would not actually “rule” upon this question. Rather, the strategy’s proponents would move that a motion to end debate on a judicial nomination be put to a majority vote. Upon a point of order that this would impermissibly alter Rule XXII’s 2/3 requirement for amending the rules by doing away with Rule XXII’s 3/5 requirement by majority vote, the Vice President would allow the Senate to decide the question pursuant to a motion to table. If a majority of the Senate votes to table the question, Rule XXII would be held in abeyance, the Senate would vote on the nominee, and a nomination could be confirmed by majority vote. Thus Rule XXII would not be altered by amendment, but merely suspended for

98 It seems unlikely that Senate would also amend Rule XXII to require less than a 2/3 majority to invoke cloture on future rule changes. The reason the 2/3 provision was left intact in 1975 is because some Senators feared that altering it would enable future Senates to amend the rule yet again, thus making cloture even easier to invoke. Beth & Bach, Filibusters and Cloture, supra note 3, at 10. In addition, as explained in the text, the Republicans seem intent on invoking the Option solely with respect to judicial nominees, not with respect to Rule XXII itself. For example, although Senator Cornyn notes that others, including “numerous Democrats,” have argued that Rule XXII’s supermajority requirement is unconstitutional with respect to legislation, this is a “far more aggressive argument” than the one he puts forth with respect to judicial nominations. Cornyn, Filibuster Reform, supra note 5, at 198. 99 The strategy could be even simpler. As outlined by Gold and Gupta, variations on the constitutional option could involve bypassing Rule XXII by majority establishment of a new Senate precedent limiting the length of debate, or through majority adoption of a Standing Order to the same effect. See Gold & Gupta, The Constitutional Option, supra note 13, at 260-71. 100 See, e.g., Charles Babington, GOP Moderates Wary of Filibuster Curb, WASH. POST, Jan. 16, 2005, at A5; Helen Dewar & Mike Allen, GOP May Target Use of Filibuster, WASH. POST, Dec. 13, 2004, at A1; Charles Babington & Helen Dewar, House Republicans Act to Protect DeLay, WASH. POST, Nov. 18, 2004, at A4; Hatch, Crisis Mode, supra note 36.

21 however long a majority of Senators believes necessary to allow for voting on the President’s nominations. In addition, although the constitutional question involved—whether imposing a supermajority requirement on judicial nominations is permissible—may differ from that raised in 1975, the essential procedural steps would remain the same. So long as a majority of the Senate believes strongly enough in the unconstitutionality of Rule XXII, that same majority could, given the proper motivation, rationalize that it was complying with its duty to uphold the Constitution by voting to table the question of whether Rule XXII should apply to judicial nominations. This rationalization is essentially what the proponents of the nuclear option are counting on in garnering the votes needed to employ it. The key is whether they have the numbers to do so. VII. Conclusion Whether the Senators opposed to the current use of judicial filibusters can garner sufficient support to utilize the “constitutional,” or “nuclear,” option is an open question. Although the President’s judicial nominations have been consistently supported by a majority of Senators101, it is uncertain whether that same majority believes that the 3/5 requirement for invoking cloture in the case of debates on judicial nominations is unconstitutional. Some moderate Senators have expressed doubts about adopting the option due to institutional concerns, the sentiment being that “[t]he Senate should not be like the House,” in which debate is specifically limited and thus filibusters are not possible.102 And although proponents of the nuclear option have advocated limiting it to ending judicial filibusters, the constitutional basis for distinguishing between judicial and legislative filibusters is far from certain. These concerns illustrate why the option has not been employed more often in the Senate. It is one thing to believe a rule is unfair or irksome; it is quite another to declare it unconstitutional and abandon it completely.

101 Hatch, Crisis Mode, supra note 36, at 2. 102 Babington, GOP Moderates Wary of Filibuster Curb, supra note 1, at A5; Fisk & Chemerinsky, supra note 3, at 184.