Senate Rules & Cloture: Yes, the French have a word for everything.
As the self-proclaimed “world’s greatest deliberative body,” the 100-person U.S. Senate has long prided itself on allowing unlimited debate. If a senator desired to end prolonged debate, a motion for cloture (French for “closing”) under Senate Rule XXII could be invoked. In the past, approval of the motion required an arduous 3/5ths vote – meaning a mere 41 senators could defeat the motion and thus preclude a vote on the merits.
The rule fostered respect, deliberation, and compromise in a manner that distinguished the six-year term Senators from their two-year term House counterparts.
The time-honored traditions of the Senate have, however, waned in a society that increasingly seeks instant gratification, plays hardball politics, lacks objectivity, employs a litmus test on issues, and despises anyone holding a differing opinion. Accordingly, our fondness or disdain for filibuster depends on whether an elephant or donkey is being gored.
What is the Nuclear Option?
The “nuclear option” is a controversial parliamentary procedure by the U.S. Senate majority party to modify, by simple majority vote, the senate rules that might otherwise require a super-majority vote to end a debate and proceed to a vote. So, if you are unable to garner 60 votes to win a cloture motion, then change the rules to require only 51 votes.
The phraseology has been attributed to former U.S. Senator Trent Lott (R-Miss) during the 2003 Democratic filibusters of President Bush’s judicial nominations.
Has the Nuclear Option ever been used?
Kinda. In 2013, the Democrats controlled the White House and Senate, but lacked a filibuster-proof majority. Perturbed Senate Democrats brandished the Nuclear Option on multiple occasions in 2013 to advance confirmation of President Obama’s stalled nominations. Finally, on November 21, 2013, now retired Senate Majority Leader Harry Reid (D-Nev.) – with the backing of President Obama – pushed a quasi, partial Nuclear Option button on a 52-48 vote. All Republicans and a few Democrats voted against the consequential change.
Then Senate Minority Leader Mitch McConnell (R-Ky.) vehemently argued against the Democrat’s use of the Nuclear Option: “I say to my friends on the other side of the aisle, you’ll regret this. And you may regret it sooner than you think.”
The Democrats’ 2013 exercise of the Nuclear Option was quasi and partial in that, technically, the rule wasn’t changed. Richard Arenberg, a former Democratic staffer writing in the New York Times, described the action as a “parliamentary gimmick.” Rather than amend the rule, the Democrat-controlled Senate voted to interpret the words “three-fifths” to mean a simple majority in connection with presidential nominations, except in the case of a U.S. Supreme Court nomination. The even-handed Arenberg observed: “One needn’t be either a math whiz or an English major to see that this was ridiculous.”
What about the Constitution?
Before Trent Lott renamed it the “nuclear option,” the concept was called the “constitutional option” and dates back to 1957, when Vice President Richard Nixon argued the Senate could “exercise its constitutional right to make its own rules.”
The U.S. Constitution is largely silent on the required vote for Senate action. Article II, Section 2, addresses presidential appointments and treaties but only the latter necessitates a 2/3rds vote. The silence on a threshold vote for nominations speaks volumes. Pursuant to Article I, Section V, the Senate gets to make its own rules. Absent a specific provision (such as the one on treaties), a majority vote is enough.
But what about the Donald?
The Democrats’ exercise in 2013 of the Nuclear Option for the first time in U.S. history set the stage for a 2017 Republican filibuster-free approval of President Trump’s nominations, with the exception of U.S. Supreme Court nominees. By any unbiased measure, the 2013 Democratic “gimmick” proved a boondoggle for the Republicans and a colossal mistake by the Democrats.
On February 1, 2017, President Donald Trump nominated Neil M. Gorsuch, an Article III lifetime federal judge on the U.S Court of Appeals for the 10th Circuit, to fill the Supreme Court vacancy resulting from Justice Scalia’s death on February 13, 2016.
The Democrats now have a choice. They can attempt to filibuster a well-qualified jurist previously approved as a federal circuit judge on a unanimous Senate voice vote in 2006. Or they can allow a vote.
If the Democrats attempt to filibuster Judge Gorsuch’s nomination to the Supreme Court, the Republicans will naturally consider a page from the Democratic playbook. A simple majority vote by the Republicans could make the Democrats’ ludicrous definition of “three-fifths” for other nominations also applicable to the U.S. Supreme Court. And this in the first few months of Trump’s four-year term. Scalia’s death at age 79 was unexpected. Sitting Justices Ginsburg, Kennedy and Breyer were born in 1933, 1936 and 1938, respectively.
A Recommendation on Statesmanship and Leadership.
The venom in America’s politics is contemptible – on both sides. Winning at all costs is a losing proposition and a scorched earth strategy is self-destructive. Just as we jointly ratcheted up the rhetoric, we can ratchet it back down and co-exist.
To the Democrats, I say engage in spirited and honorable debate, but then let the Supreme Court nomination of the qualified jurist proceed to a vote. Yes, the Republicans will win the vote – one you are going to lose, one way or another – but you will have gained a moral foothold and taken a needed step toward a more congenial legislative process.
To the Republicans, I say use your pro tem power judiciously. The shoes you currently wear will, sooner or later, adorn the feet of another party.
As the award-winning musical Hamilton rages on, let’s remember that Statesman’s adage: “Real liberty is neither found in despotism or the extremes of democracy, but in moderate governments.”
» Ben Williams the author, is a Mississippi attorney. Email Ben at MBWJ@aol.com. Ford Williams, the artist, attends the Savannah College of Art & Design (SCAD).