Understanding the Nuclear Option

Democrats in the Senate say they have the votes to prevent or delay a vote on Justice Gorsuch's nomination to the Supreme Court. They are fully prepared to filibuster. Republican Senate leader McConnell threatens "the nuclear option" if they use the filibuster.

The filibuster is a Senate technicality, used rarely in our history until recently. It requires sixty votes to end discussion of a matter and let it go to a vote. Without the sixty votes, the majority is unable to proceed.

During President Obama's administration, Republicans (in the minority for six of those eight years) threatened to filibuster nearly everything, and certainly the President's judicial and administrative appointments. This graph gives an idea of the difference between how Senate Republicans treated President Obama -- whose legitimacy they never tired of questioning -- and how other presidents were treated:

Chart showing drastic increase in filibusters of federal judges. 

There is no comparison between what Republicans in the Senate did to cripple the President and what previous Senators did to previous presidents. 

After President Obama was still unable to fill 100 positions within his administration that required Senate approval and nearly as many open judgeships -- leading to an unprecedented number of judicial emergencies called by overburdened courts, Democrats used the only tool left to them to ensure that the executive and judicial branches could continue to function: they changed the rules in 2013, ushering in a flood of new judges with simple majority votes. 


This rule change was called "the nuclear option" because of the dramatic effect it has on Senate procedures and the power of the minority. Even so, Senate Democrats excluded Supreme Court appointments and determined to continue to allow filibusters of such high level appointments, reasoning that a lifetime appointment to the highest court in the land ought to have some bipartisan support. 

Democrats were able to proceed without this form of Republican obstruction only until the next year's election, when the Senate leadership flipped Republican. It was a one year gain.

In 2015 and 2016, Senator McConnell found other ways to block judicial appointments, preventing just this one president from carrying out his Constitutional responsibilities. Ultimately, he refused to even allow the consideration of Judge Merrick Garland for the open Supreme Court seat.

It took four years of constant Republican obstruction for a frustrated Democratic majority to impose the nuclear option.

Today, McConnell says that if the Democrats use the remaining filibuster power EVEN ONCE, he will invoke the nuclear option -- denying the right of filibuster even for SCOTUS nominees.

Democrats have nothing to gain by this game of chicken. It's a useless power if it will be jerked away any time you try to use it. Do the filibuster. Let McConnell destroy the last power of the minority.

Senate leadership will change again. And when it does, McConnell's bag of tricks will be empty. His racist resistance to a great black president will not reflect well on him in history. Apparently, he doesn't care.


  1. Good post. Republicans have attempted to show an equivalency, but it is a false one. Historians will sort it out. Republicans broke the norms with constant filibusters and Democrats responded. Republicans will have ended the filibuster when they seat Gorsuch. The truth is that the filibuster on Supreme Courts nominees ended as soon as Republicans announced they would not consider Garland. At that point "norms" ended and it became a matter of brute force, and brute force allows one majority to make the rules that end minority powers like the 60 vote filibuster. It was a norm of bipartisanship consensus that was broken.

    The Senate will be different now, for better or worse. When historians write about this period the Senate Revolution will be one of the big stories, the cause or contributor to multiple events. I predict greater partisanship, more brinksmanship, more constitutional crises. A fully partisan Supreme Court. Show trials and imprisonment of defeated candidates. The Senate had been the last organ of government where bipartisanship had been required--not the Supreme Court, the Senate. This is a milestone.

    Peter Sage
    Medford, Oregon www.peterwsage.blogspot.com I will write about this today. You raised an important point, Citizen.

  2. I look forward to reading your next blog, Peter.


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