Defusing the Nuclear Option

Kevin Drum reacts to Trent Lott’s call for eliminating the filibuster option for judicial appointments–which has somehow come to be dubbed “the nuclear option”–with a little history lesson involving shenanigans Orrin Hatch and the Republicans have played with senatorial courtesy.

Bottom line: Yes, Democrats are filibustering some of George Bush’s judges, but they’re doing it only because Republicans have relentlessly dismantled all the avenues of dissent they themselves took advantage of back when Democrats controlled the Senate. There’s no principle involved in this, just a raw exercise of power.

Remember that the next time you hear one of them whining about the “unprecedented” use of the filibuster by Democrats. It wouldn’t have come to this in the first place if it weren’t for the unprecedented destruction of senatorial tradition ruthlessly engineered by Senate Republicans over the past six years.

One can certainly play the “well, they started it” game from either side. Republicans correctly point out that the Democrats used some rather sleazy tactics to derail the confirmation of Robert Bork, who all but the most ideological Democrats will acknowledge was superbly qualified. Democrats correctly counter that the Republicans have been just as bad, if not worse, when they’ve been in power.

At some point, the escalation has to stop and some level of comity restored. This strikes me as the perfect time. It’s not just because my guys are in power. The GOP has a huge majority of 55 seats to 44/45 for the Democrats (technically, Jim Jeffords is an “Independent” but he votes with the Democrats when it counts). Given that they’re likely to get their way on most issues anyway–and that as many as six Republicans would probably join with the Democrats in the case of an incredibly controversial nominee–why not set in place rules that ensure that presidential nominees are accorded an up or down vote? Not only is it quite arguably what the Constitution demands but it’s a good rule. Indeed, the constant threat of a filibuster for any but the most lukewarm nominees strikes me as much more “nuclear” than this.

If the Democrats regain control of the Senate at some point in the future–and history says they will–then this will prevent the Republicans from using the filibuster, too. In the near term, at very little practical cost in political power, the Democrats help restore a more collegial working relationship in the Senate by bringing an end to a vicious cycle of retaliation that’s been ongoing for nearly two decades. It’s about time.

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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. Anjin-San says:

    The founding fathers clearly wanted our govt. to be regulated by a series of check & balances. Any attempt by either party to put itself in a postition to steamroll opposition strikes me as being unhealthy for our democracy.

  2. Dodd says:

    Anjin-San’s remarks are well taken but there’s a very good argument that the current arrangement is unconstitutional, which would render them null and void.

  3. Ravi says:

    I’m confused. How is taking away the one remaining, effective tool that Democrats have to protest nominees they find extreme stopping the escalation and restoring a level of comity? It sounds to me like the next round of escalation. American political tradition has been that most judges are typically confirmed with 90+ votes in the Senate. It strikes me as an admission of historic extremism to (effectively) concede that you can’t persuade 5 of 45 Democrats (several of whom, including, for instance, the minority leader are pro-life) that a nominee is acceptable.

  4. Attila Girl says:

    1) The most democratic option is to simply have an up-or-down vote (and, as James points out, it will remain so when the Democrats are back in power);

    2) The filibustering is not being done because the nominees are “extreme” (though it is spun that way); it’s being done out of partisan “team spirit.”

  5. The Monk says:

    Republicans have never used the filibuster to block a judicial nominee and likely lack the stomach to do so in the future. The Republicans in Congress have always worried about how they are perceived in the press and the press has been foursquare behind the Schumer/Clinton filibuster tactic from the start. Also: although Democrats and the press love to refer to Hagel and McCain as “mavericks” the fact is that when the chips are down on judicial nominations, they heed the party line (as do Collins and Snowe; Specter is occasionally another story).

    And sorry, but no transgressions by Republicans even approaches 25% of the level that the Democrats’ stonewalling has reached. The “facts” that Kevin Drum cites are worthless because they are in a vacuum: he does not cite ANY objection that prevented a Clinton nominee from getting seated on the bench and the “objections are advisory” rule Hatch promulgated in 2003 was in direct response to Carl Levin and Debbie Stabenow’s meritless objections to Bush’s Sixth Circuit nominees (based on Bush’s refusal to accede to Levin’s unprecedented request that he “re-nominate” one of Levin’s relatives [by marriage]). Sorry, but these points do not counterbalance the Democrats’ unprecedented and unconstitutional attempt to require a supermajority for consenting to judicial nominations.