# Will Senate Republicans use the "nuclear option"? **URL:** \ **Category:** Great Debates\ **Created:** [March 31, 2005, 12:34am UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027 "2005-03-31T00:34:03Z")\ **Posts on this page:** 15\ **Page:** 2
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [March 31, 2005, 2:00pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/21 "2005-03-31T14:00:56Z")
> [@BrainGlutton](#): > > That raises an interesting question: Does the Senate’s traditional right of “unlimited debate” apply to **all** matters, including debates over changes to the Senate’s procedural rules? I can find no answer to that on the relevant page of the Senate’s website ([http://www.senate.gov/artandhistory/history/common/briefing/Filibuster\_Cloture.htm](http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm)), nor in the relevant Wikipedia article ([http://en.wikipedia.org/wiki/Filibuster\_(legislative\_tactic)](http://en.wikipedia.org/wiki/Filibuster_%28legislative_tactic%29)). Is there any Doper with deep knowledge of Senate rules? (raising hand) You’ve hit upon the reason why Democrats are so outraged about the possibility of the nuclear option, and the reason why Republicans are threatening it: there’s no way to filibuster the nuclear option. The Senate basically runs by three sets of rules: the Standing Rules, the organizational resolutions that are passed at the beginning of each Congress, and the precidents. Let me briefly explain each one. Organizational resolutions do things like designate who is the Majority Leader and such. Theoretically, these can be filibustered, but I believe that would be unprecidented. The Standing Rules basically continue until changed, and, by the text of the Standing Rules, it takes 67 votes to invoke cloture on changing the text of the Standing Rules. If there is no filibuster, the Senate may change its Standing Rules with 51 votes. This isn’t really relevant to the nuclear option. The precidents of the Senate are exactly like case law in the courts. When disputes arise about interpretation of the Standing Rules, the presiding officer has to rule, and that creates a precident. If Senators disagree with the ruling, they can ask for a vote to overturn the chair’s ruling, but there is no debate allowed if a senator asks to do this. However it comes out, the precident is binding on the Senate until it is overturned. This is the heart of the nuclear option. The plain text of the Standing Rule that deals with cloture says that it takes a 3/5 vote of the Senate to invoke cloture on **any** debatable motion, legislation, or other matter (except for rule changes and treaties, which would require 2/3). Underthe nuclear option, Bill Frist would ask the chair to rule that “any debatable motion, legislation, or other matter” does not include judicial nominations. The Chair, acting as a shill, would then agree with Frist. Someone would appeal the ruling of the chair, but because this motion cannot be debated, the Senate would go to an immediate vote, Republicans would vote in favor of the chair, Democrats would lose, and a new precident – not a new Standing Rule, but a new precident of how a Standing Rule is to be interpreted – would be created. I hope that this explaination is helpful. Now, to the meat of the matter, in a tangential way: there are many folks out there who have a problem with Roe vs Wade, not because it legalized abortion, but because five justices reached into the Constitution and invented a right to privacy that exists nowhere in the text of the Constitution. In effect, these people say that the Supreme Court wanted to reach a particular decision, text of the Constitution be damned. Well, this is exactly the same thing that is happening to Senate rules. There is no text of a Senate rule that justifies gutting the filibuster on judicial nominations. The plain text of the Senate rules is absolutely clear that 3/5 of the Senate must vote to invoke cloture on legislation, motions, nominations, or nearly anything else. The nuclear option is basically a majoritarian way of declaring that red is green, no matter how perfectly obvious it is that red is red. Bottom line: if you think the Supreme Court erred in Roe v Wade by reading into the Constitution words that do not exist, you should also think that Senate Republicans are erring by reading words that do not exist in Senate Rules. Unfortunately, no good Democrat is going to use that argument, because they can’t be seen as not fully supporting Roe v Wade, but the same principle applies. Lawful societies do not ignore the plain language of laws simply in order to achieve political ends. Oh, and one other point of clarification: the nuclear option would result in a near shutdown of the Senate, NOT of any government agency. The Senate would continue to pass appropriations bills to keep the government running. What this means is that Senate Democrats are not as crazy as Newt Gingrich in threatening a government shutdown, and that the threat to “shut down” the Senate would hardly matter a whit to anyone outside the Beltway. it’s not a terribly effective threat. ---
**Author:** ![Harborwolf](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Harborwolf](https://boards.straightdope.com/u/Harborwolf)\ **Post date:** [March 31, 2005, 2:14pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/22 "2005-03-31T14:14:10Z")
> [@VarlosZ](#): > > All sorts of basic services are cut off (need a passport?), huge numbers of federal employees are temporarily out of work, etc. > > I can sympathize with your desire to keep Congress et al. from mucking things up for a little while, but a government shutdown clearly does more harm than good. Wasn’t that a shutdown over a budget plan? I think a non budgetary shutdown would affect very little regarding services. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 31, 2005, 2:23pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/23 "2005-03-31T14:23:02Z")
> [@BrainGlutton](#): > > 😕 During the Clinton Administration I recall a lot of news stories about Senate Republicans blocking Clinton’s judicial appointees (though I don’t recall if the word “filibuster” was ever used). Correct, their approach was simply to never schedule committee hearings in the first place. ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [March 31, 2005, 2:28pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/24 "2005-03-31T14:28:11Z")
> [@BrainGlutton](#): > > 😕 “Blue slip rule”? Effectively, any Senator could ‘blue slip’ a judicial nominee but placing a procedural hold on someone. And it was largely anonymous (though sometimes it came out). So a Senator could, in secrecy, go to the powers that be and say “I have unspecified questions on this nominee. Until I personally answer those questions to my satisfaction I request that we hold up his nomination.” And then they’d just sit on it. Forever, if necessary. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 31, 2005, 4:55pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/25 "2005-03-31T16:55:05Z")
> [@duffer](#): > > Care to show how how shutdowns are a “big, fat pain in the ass for the country”? :dubious: I was mainly expressing skepticism at your sanguine certainty that essential public services “never will” be interrupted by a government shutdown. But, from [http://usgovinfo.about.com/library/weekly/aa102499p2.htm:](http://usgovinfo.about.com/library/weekly/aa102499p2.htm:) > [@](#): > > The Costs of a Shutdown > Following the six-day shutdown that lasted from November 14 - 20, 1995, the Clinton Administration released documentation of what it cost: > > In lost dollars: > > $700 - $800 million including $400 million to furloughed federal employees who were paid, but did not report to work. The Treasury Department reported another $400 million in lost revenue over the four days that the IRS enforcement divisions were closed. > > In inconvenience to citizens: > > Medicare - 400,000 newly eligible participants were delayed in enrolling. > > Social Security - claims from 112,000 applicants were not processed. 212,000 new or replacement Social Security cards were not issued. 360,000 office visits were denied. 800,000 toll-free calls for information were not answered. > > State Department: 80,000 passport applications delayed. 80,000 visas delayed. The resulting postponement or cancellation of travel hurt US airlines, hotels, and tourist industry. > > National Parks: 2 million visitors turned away. > > Government-backed Loans: FHA mortgage loans worth more than $800 million to more than 10,000 low-and-moderate-income working families were delayed. And that was just the first six days. Various government functions were “idled for varying lengths of time until April of 1996.” Big fat pain in the ass. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 31, 2005, 5:02pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/26 "2005-03-31T17:02:53Z")
> [@Jonathan Chance](#): > > Effectively, any Senator could ‘blue slip’ a judicial nominee but placing a procedural hold on someone. And it was largely anonymous (though sometimes it came out). > > So a Senator could, in secrecy, go to the powers that be and say “I have unspecified questions on this nominee. Until I personally answer those questions to my satisfaction I request that we hold up his nomination.” > > And then they’d just sit on it. Forever, if necessary. But suppose the “powers that be” (which I infer means either the president pro tem of the Senate or the chair of the Judiciary Committee) are of the other party? Which they would have been, during several periods in Jesse Helms’ long Senate career (1973-2003)? Is “blue slip” something you can only do when your own party is in the majority? Or is there some quirk in Senate rules that allows even a minority senator to use the tactic effectively? ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [March 31, 2005, 5:16pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/27 "2005-03-31T17:16:29Z")
> [@BrainGlutton](#): > > But suppose the “powers that be” (which I infer means either the president pro tem of the Senate or the chair of the Judiciary Committee) are of the other party? Which they would have been, during several periods in Jesse Helms’ long Senate career (1973-2003)? Is “blue slip” something you can only do when your own party is in the majority? Or is there some quirk in Senate rules that allows even a minority senator to use the tactic effectively? It’s a quirk in the rules, my friend. > [@](#): > > Under longstanding Senate tradition, when a President nominates someone to a federal judicial position, the two Senators from the nominee’s home state have an opportunity to indicate their approval or disapproval of the nominee to the Committee Chairman. Because returning a questionnaire printed on blue paper indicates approval, the process is known as the “blue slip” policy. Under Senate rules and custom, withholding a blue slip or returning a negative blue slip could forever doom a nomination or, at least, make the road to confirmation a bumpy one. An interesting history of this process is explained [here](http://www.civilrights.org/publications/reports/judges/ch2.html). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 31, 2005, 6:22pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/28 "2005-03-31T18:22:49Z")
I agree with the _New York Times_ editorial page: > [@](#): > > …this page [supports] tactics that would have gone even further than the “nuclear option” in eliminating the power of the filibuster… we had vivid memories of the difficulty that Senate Republicans had given much of Bill Clinton’s early agenda. Er… that was the _Times’_ opinion ten years ago, actually. Strangely enough, referring to that proposal, they now say: > [@](#): > > We were still wrong. [Link, registration required.](http://www.nytimes.com/2005/03/29/opinion/29tue1.html) Fascinating that the _Times_ supported such an option when it favored the Democrats, and now, when it would favor Republicans, they feel it’s the wrong idea. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 31, 2005, 7:19pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/29 "2005-03-31T19:19:27Z")
Yep, the liberal media hive mind is at it again. “Strangely … fascinating” :rolleyes: Feels good, doesn’t it? Now how about discussing the Senate Republicans instead, **Bricker**? Ya know, the\* OP\*? For the benefit of those who might be fooled into thinking **Bricker** ’s excerpt is representative, here’s more: > [@](#): > > Since George W. Bush first became president, Democratic senators have used the filibuster 10 times to block the confirmation of nominees for federal court judgeships. They chose their targets cautiously - more than 200 other nominees were confirmed, some of them men and women whose records were extremely conservative. > … > The president might have taken this opportunity to fulfill his long-deferred promise to be a uniter, and replaced the rejected nominees with other candidates from the very large pool of competent people available. Instead, Mr. Bush has drawn a line in the sand and resubmitted some of the same unworthy nominees. > … > **But the sense that there are certain rules that all must play by, whether to their advantage or not, is something that cannot be restored. Senators need only to look at the House to see what politics looks like when the only law is to win at any cost**. Do you agree with that too? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [March 31, 2005, 7:40pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/30 "2005-03-31T19:40:46Z")
> [@ElvisL1ves](#): > > Yep, the liberal media hive mind is at it again. “Strangely … fascinating” :rolleyes: > Feels good, doesn’t it? Not particularly. Of course, I don’t take the same joy as you apparently do in seeing the hypocrisy of major liberal institutions like the Times. > [@Larry the Cable Guy](#): > > I don’t care who you are, that there’s a funny joke. > [@ElvisL1ves](#): > > For the benefit of those who might be fooled into thinking **Bricker** ’s excerpt is representative, here’s more: > > > [@](#): > > > > But the sense that there are certain rules that all must play by, whether to their advantage or not, is something that cannot be restored. > > Do you agree with that too? I think the point is that the NYT **doesn’t** think that there are rules “that all must play by”. They think there are rules that only Republicans should play by, and now that the shoe is on the other foot, suddenly any change to the filibuster is a dreadful thing. So **Bricker** ’s excerpt is quite representative - of the kind of bald-faced hypocrisy so common among long-established institutions of the Left. They gotta cover up _somehow_, don’t they? Democratic minority = filibuster good. Republican minority = filibuster bad. Seems simple enough to me. Regards, Shodan ---
**Author:** ![Merijeek](https://avatars.discourse-cdn.com/v4/letter/m/f05b48/32.png) [@Merijeek](https://boards.straightdope.com/u/Merijeek)\ **Post date:** [March 31, 2005, 7:49pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/31 "2005-03-31T19:49:10Z")
> [@Apos](#): > > It isn’t just filbibusters: this is just the last in a long line of proceedural checks available to a minority party thatthe Republicans used to get tons of mileage out of, but have now dismantled that they are in power. > > One wonders why the Democrats didn’t dismantle these checks when they were in power? It probably comes down to values… Not necessarily. It probably comes down to sense. Dismantling the checks and balances (as well as restrictions on the power of the Executive Branch) is a bad idea because your party will not always be in power. Anyone with sense can look at the situation and say, “Well, shit. If we do that and then end up as the minority party we’ll be well and truly fucked.” I think that maybe the question to ask is why the Republicans don’t consider how it will hurt them if they lose power. Maybe they don’t think they’ll ever lose power. -Joe ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 31, 2005, 8:05pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/32 "2005-03-31T20:05:12Z")
**Shodan** , apparently you’d rather change the subject as much as **Bricker** does, don’tcha? Got anything useful to say about the OP? Just so you get it: The New York Times has no power to change anything about our lives. The Senate does. One’s conduct does not matter, the other’s does. You can be relevant or you can be ignored. Which is it? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 31, 2005, 8:34pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/33 "2005-03-31T20:34:23Z")
Just so everyone is aware, the [fillibuster](http://en.wikipedia.org/wiki/Filibuster_%28legislative_tactic%29) rule itself has changed many times. > [@](#): > > Filibusters have become much more common in recent decades. Twice as many filibusters took place in the 1991-1992 legislative session as in the entire nineteenth century. (Frozen Republic, 198) > > Until 1917, there was no formal mechanism to allow the senate to close debate, and any senator could start a filibuster. From 1917 to 1949, two-thirds of those voting could limit debate on a measure. As civil rights loomed on the Senate agenda, this rule was revised in 1949 to allow cloture on any measure or motion by two-thirds of the entire Senate membership; in 1959 the threshold was restored to two-thirds of those voting. After a series of filibusters in the 1960s over civil rights legislation, the Senate revised its cloture rule so that three-fifths of the Senate (usually 60 senators) could limit debate. Despite this rule, the filibuster or the threat of a filibuster remains an important tactic that allows a large minority to affect legislation. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [March 31, 2005, 8:37pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/34 "2005-03-31T20:37:57Z")
> [@ElvisL1ves](#): > > **Shodan** , apparently you’d rather change the subject as much as **Bricker** does, don’tcha? Got anything useful to say about the OP? > > Just so you get it: The New York Times has no power to change anything about our lives. The Senate does. One’s conduct does not matter, the other’s does. > > You can be relevant or you can be ignored. Which is it? Look, **Elvis** , I realize completely that you find it upsetting to have your nose rubbed in the two-faced hypocrisies of the Left. No doubt life would be lots smoother if we could all pretend that Republicans are always the big nasties, and Democrats were high-minded defenders of the best in American politics. And no doubt you would find it lots easier to win arguments on the Internet if we could all just pretend that history doesn’t count, that Republicans are making an unprecedented grab for power and that Democrats were motivated by only the purest and best motives. But that isn’t true. So I am not going to oblige you by pretending that it is. Maybe the New York Times had some excellent reasons for opposing this change to the filibuster. Maybe they had even more excellent reasons back when they supported it. Currently, they claim that they were wrong then but right now. Maybe that’s true. Or, maybe they are wrong now and right then. I don’t think we can tell that for certain, unless we examine the arguments both then **and** now. What is quite clear is that all this rat vomit about how we ought to oppose (or support) this change because one party is deeply committed to the cause of truth, justice, and the America Way and the other is engaged in a naked power grab is a load of the purest horseshit. And Democrats who say, “No, no, we will oppose this horrible transgression because of our deep commitment to the principles on which our nation was founded, with liberty and justice for all, e pluribus unum, non compos mentis, void where taxed or prohibited”, they are very likely to be talking out their over-sized asses. So I am afraid that I must decline to abide by your restrictions on what the discussion entails, regardless of its effects on your blood pressure. I notice you had no objections to listing what Slick Willy had to say back in the 90s, and he is no more in the Senate than the New York Times editorial writers. So engage me, or ignore me, as you see fit. I can’t say that I am exactly pining for the sunshine of your attention, so I may manage to survive either way. Just possibly. Regards, Shodan ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 31, 2005, 8:39pm UTC](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027/35 "2005-03-31T20:39:19Z")
> [@ElvisL1ves](#): > > Got anything useful to say about the OP? Evidently not. [Previous page](https://boards.straightdope.com/t/will-senate-republicans-use-the-nuclear-option/297027.md?page=1)