What if there’s no ‘Nuclear Option’ in the Senate?

Democrats hope to filibuster the Gorsuch nomination to death. Since it takes 60 senators to force a vote, if 52 Republican senators can’t persuade eight Democrats to join them, the Gorsuch nomination will die without ever coming to a yes-or-no vote. That would be a terrible way to treat a distinguished nominee, but it’s understandable as payback for the Republican’s appalling treatment of the equally-distinguished Merrick Garland.

If he can’t round up 60 votes, Majority Leader Mitch McConnell (R-Ky.) threatens to invoke a  parliamentary maneuver invented in 1957 by then-Vice President Richard Nixon, dubbed the “nuclear” or “constitutional” option,” where the Senate’s presiding officer rules on a point of order arguing that a particular filibuster is unconstitutional.

{mosads}The Senate then votes on the ruling, with the outcome of the vote creating a binding Senate precedent banning the challenged practice forever. It’s the parliamentary equivalent of a feigned constitutional case before a hand-picked judge designed to generate a pre-determined binding precedent.

Since the Nixon rule allows 51 Senators to amend the Senate’s rules at will, it runs headlong into Senate Rule XXII, which provides:

[On a motion to limit debate] if that question shall be decided in the affirmative by three-fifths of the Senators…except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting – [the matter is to be put to a speedy vote].

Can Nixon’s 51 vote nuclear option be harmonized with the 2/3 rule imposed by Rule XXII? Only if it is narrowly confined to settings where the Senate’s rules are being systematically abused in an unconstitutional manner. In fact, Nixon’s constitutional option has been used, rather than merely threatened, only once, on Nov. 21, 2013, by Senate Majority Leader Harry Reid (D-Nev.), working in tandem with Sen. Pat Leahy (D-Vt.), who was presiding over the Senate in the Vice President’s absence. 

Reid raised a point of order challenging the Senate’s filibuster of the extremely well-qualified Patricia Millet to the D.C. Circuit. Leahy, enforcing Rule XXII, denied the point of order. Reid then appealed the denial to the entire Senate, which rejected Leahy’s ruling 52-48. At that point, Leahy announced that a binding Senate precedent had been established blocking filibusters of Executive appointments and lower court judges, but not Supreme Court Justices. Reid then promptly orchestrated a second 52-48 Senate vote affirming Leahy’s announcement of a new precedent. Presto. In the words of Sen. Orrin Hatch (R-Utah), the Democrats had figured out how to make 52 equal 67. 

In 2013, the Republican Senate leadership did not object under Rule XXII. Maybe, the Republicans were asleep. More probably, they realized that their systematic abuse of the filibuster to prevent an elected President from governing did, in fact, violate the Constitution. While It made good sense in 2013 to use the 51 vote constitutional option to put an end to systematic unconstitutional abuse of the filibuster rules, the threatened filibuster of the Gorsuch nomination does not raise an issue of systematic abuse of the rules. Unlike 2013, no one is stopping President Trump from governing, except President Trump himself. If anything, filibustering the Gorsuch nomination would be justified to prevent a scheduled April 7 vote that allows only one week for Senate discussion of a Supreme Court nomination.  

In the absence of a plausible constitutional issue raised by the Gorsuch filibuster, the 2013 precedent is simply inapplicable. If the Republicans, nevertheless, insist on invoking the Nixon rule, respect for Rule XXII mandates that, in the absence of plausible allegations of unconstitutional abuse, the scripted point of order at the heart of the nuclear option be sustained by 2/3 of the senators present and voting before it morphs into a binding Senate precedent. At a minimum, unlike the sleepy Republicans in 2013, the Democratic Senate leadership should counter with points-of-order demanding debate on any appeal to the Senate that does not require a 2/3 vote.  

The Senate could, of course, choose to operate under a rule providing for changes in the rules by majority vote, or, for that matter, under no rules at all. But that’s not what the Senate has done. Instead, the senators have carefully submitted themselves to a rule about changing rules that requires a 2/3 vote. Republican senators were free to change the Senate’s rules by majority vote in Jan., 2017, during the organizational phase of the current Congress. They will be free to do so again in January, 2019, if and when they organize the new Congress. Until then, under Senate Rule XXII, in the absence of an unconstitutional abuse of the filibuster, it takes a 2/3 vote to change the Senate rules in midstream.  

Burt Neuborne is the Norman Dorsen Professor of Civil Liberties and Founding Legal Director of the Brennan Center for Justice at NYU School of Law.

The views expressed by this author are their own and are not the views of The Hill.