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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 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 © 2005. All Rights Reserved. Filibusters, Cloture, and the “Nuclear Option”: The Current Debate Over Changing Senate Rules for Approving Judicial Nominations March, 2005 © 2005, Nixon Peabody, LLP. All Rights Reserved. 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-,
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