Nuclear Option Has Precedent

Bob Novak argues that, not only is the so-called “nuclear option” sound policy but it’s been done before:

A scenario for an unspecified day in 2005: One of President Bush’s judicial nominations is brought to the Senate floor. Majority Leader Bill Frist makes a point of order that only a simple majority is needed for confirmation. The point is upheld by the presiding officer, Vice President Dick Cheney. Democratic Leader Harry Reid challenges the ruling. Frist moves to table Reid’s motion, ending debate. The motion is tabled, and the Senate proceeds to confirm the judicial nominee — all in about 10 minutes.

This is the ”nuclear option” that creates fear and loathing among Democrats and weak knees for some Republicans, including conservative opinion leaders. Ever since Frist publicly embraced the nuclear option, he has been accused of abusing the Senate’s cherished tradition of extended debate. In truth, during six years as majority leader, Democrat Robert C. Byrd four times detonated the nuclear option to rewrite Senate rules.


This is precisely what Byrd did as majority leader, as explained in an article by Martin Gold and Dimple Gupta to be published in the January issue of the Harvard Journal on Law and Public Policy. They write that Byrd ”developed four precedents that allowed a simple majority to change Senate procedures governing debate without altering the text of any standing rule.” In each case, Byrd successfully overcame dilatory tactics by the Republican minority.

It remains an open question whether Frist can mobilize Republicans as effectively as Byrd commanded Democrats to get even 51 votes. The ”New England Three” of liberal Republican senators from Maine and Rhode Island may vote no. John McCain and Chuck Hagel have misgivings, with Hagel recalling the dark Republican days of the ’70s when only a handful of Republican senators stood up against the Democratic tide.

Very interesting. I’d like to see Gold and Gupta article when it comes out. While I can’t stand Byrd, the former Klansman is fawned over by the media as the Dean of the Senate and its most sacred guardian of Constitutional propriety. If he can do this four times, it must, ipso facto, be permissible.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. McGehee says:

    But Byrd’s a Democrat. That makes it permissible for him. What’s permissible for Democrats would almost certainly be portrayed in most of the press as the rebirth of fascism is done by Republicans.

  2. carpeicthus says:

    I, too, would love to see this paper, and whether the situations are in any way comparable. Given that Novak burns at the touch of truth and didn’t name what any of these instances were, I’m skeptical for now.