Senate Committee Passes 'Nuclear Option' Filibuster Rule

By Jeff Johnson | July 7, 2008 | 8:29 PM EDT

Capitol Hill ( - Anticipating a possible vacancy on the Supreme Court later this year, the Senate Rules and Administration Committee Tuesday passed what opponents have called the "nuclear option" to end the Democrats' strategy of filibustering judicial nominees they do not have enough votes to defeat. Senate Minority Leader Tom Daschle (D-S.D.) predicted Democrats will be able to block the resolution, just as they have been successful in blocking the president's judicial nominees.

Under the Senate's current rules, any senator can "filibuster" a judicial nomination simply by objecting when a "unanimous consent request" is made for a confirmation vote. To break the filibuster, supporters of the nominee file a "cloture motion" to end debate. Cloture motions on nominations now require 60 votes to pass.

Sen. John Cornyn (R-Texas), the sponsor of a resolution to change that rule, complains that Democrats have been able to sustain a 41- to 45-member coalition to keep nominees they perceive as "too conservative" from receiving confirmation votes.

"There has never been a filibuster of a judicial nominee, now there are two," Cornyn said. "Further nominees are threatened to be filibustered, and we must do something soon, or this downward spiral of obstructionism will only grow beyond our capacity for reform." previously reported, along with other national news outlets, that there had been a filibuster of a judicial nominee when, in 1968, 24 Republicans and 19 Democrats opposed the elevation of Supreme Court Justice Abe Fortis to the position of chief justice of the United States. It has since been learned that Fortis' nomination was withdrawn when only 46 senators agreed to support for the nominee.

Currently, a minority of senators, composed entirely of Democrats, is blocking the nominations of Miguel Estrada to the U.S. Circuit Court of Appeals for the District of Columbia and Texas Supreme Court Justice Priscilla Owen to the 5th U.S. Circuit Court of Appeals, even though both nominees have the support of at least 51 senators. Democrats have also threatened to filibuster the nominations of Carolyn Kuhn to the 9th U.S. Circuit Court of Appeals and Alabama Attorney General William H. "Bill" Pryor to the 11th U.S. Circuit Court of Appeals if their nominations are brought to the floor.

But Senate Resolution 138 (S. Res. 138) would reduce the number of votes required to break the filibuster of a judicial nominee by three each time a subsequent cloture motion is filed. On the fourth such vote, 51 senators could "invoke cloture," ending debate within 30 hours and forcing a confirmation vote.

Daschle said Tuesday that he wished Republicans would not force the issue.

"It is a very irresponsible and dangerous path to take," Daschle said, "and I would hope that [Republicans] would recognize the precarious circumstances under which that would be offered and would decide not to."

The South Dakota Democrat was also asked if Democrats have enough votes to block the rules change in the same manner they have blocked some of the president's judicial nominees.

"I believe we do," he said. "I think the rule will be defeated on the Senate floor."

Cornyn calls the resolution "a reasonable, common-sense proposal" and hopes his colleagues will look past partisanship to what is best for the nation's judiciary and for the efficiency of the Senate.

"There are at least 26 laws on the books today that prohibit a minority of senators from using the filibuster to permanently block certain kinds of measures," Cornyn said. "The judicial confirmation process should surely be added to this list."

If not, Cornyn warns, an even more important judicial vacancy could set the stage for one of the most politically destructive battles in the history of the Senate.

"Such failure would be especially troubling and in fact unacceptable," he said, "during the confirmation debate on a future nominee to the Supreme Court."

Court watchers have predicted that one or more justices could announce retirement from the Supreme Court as early as this month.

The full Senate must vote on the resolution before it can take effect. Rules changes require only a simple majority - 51 votes - to pass, but opponents can filibuster the resolution under a special rule that would let only one-third of the senators block a vote on the proposal.

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